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M 






100 

3 12.0 



REPORTS 



OF 



NEW MAGISTRATES^ CASES. 



VOLUME I. 



REPORTS 



OF 



NEW MAGISTRATES' CASES 



AROUSO AND OBTXRMINBO 



IN ALL THE COURTS OF COMMON LAW AT 
WESTMINSTER. 



kP%n 



^ 









ADAM BITTLESTON, Esq., and 
EDWARD WISE, Esq., Babbistebs-at-Law. 



VOL. I. 

FROM EASTER TERM, 1844, to TRINITY TERM, 1846. 



LONDON: 

PUBLISHED AT THE LAW TIMES OFFICE, 
29, ESSEX STREET. STRAND. 

1846. 



Printodbf J.^H.Coz, BaonxBa* 74 ^ TB^ Gmt Qosn Strm, 
LfawoiiinKlBD Fiddb 



/ 



PREFACE 



The following forms very nearly a complete collection of the cases relating to 
the Duties aiid Office of Justices of the Peace which have been determined by 
the Courts during the two years over which the volume extends. The approval 
of the Profession is shewn by the extent of its circulation. 

The cases in the earlier part of this volume, to which the initials J. C. S. are 
attached, were reported by Jelinger C. Symons, Esq., under whose super- 
intendence, in conjunction with one of the present Editors, A. Bittleston, Esq., 
the publication of this series of Reports cpmmenced. 

In compliance with requests from many quarters, the future volumes will be 
printed in a larger type, as being more easy for reference and more pleasant 
for reading. 

Arrangements are made by which the cases of each Term will, it is hoped, 
henceforth be placed in the hands of the subscribers previous to the next 
ensuing Quarter Sessions. The difficulties attending a new enterprise have 
hitherto occasionally prevented the accomplishment of this portion of the 
design. 

12th October, 1816. 



VOL. !• 



[" 

hi- 



INDEX 



CASES REPORTED 



IN THIS VOLUME. 



PAOB 

Aberdaron, Inhabitants of, Regina v. 51 

Acton, Overseers of, Regina v, ... 420 

Allpress and Asbton, Re 269 

Altringbam, Inhabitants of, Regina v, 348 

Anglesea, Justices of, Regina v, ... 520 

Appleby, Inhabitants of, Regina v. 250 

Ashburton, Inhabitants of, Regina v. 524 

Attorney- Gteneral, Mayor of Poole r. 158 
Aylesbury-with- Walton, Overseers of, 

Regina V. 560 



B. 



of 



Badcock and Others, Trustees 

Taunton Market, Regina v. 
Bakewell, Inhabitants of, Regina v. 

Barnes r. White 

Bedingham, Inhabitants of, Regina v, 
Birmingham, Inhabitants of, Regina v. 

Blaney, Ex parte 

Bkythwayte, Regina v 

Bloxham, Inhabitants of, Regina v. 
Bolton, Recorder of, Regina v. 

Boothroyd, Re 

Bradford, Inhabitants of, Regina v. 
Bridgman and Others, Justices, Re- 
gina© 

Brighthelmstone, Inhabitants of, Re- 
gina v 

Knstol, Recorder of, Re^a v. 

Brook, Jenney V 

Bockingham, Justices of, Regina v. 

Barnbam, Overseers of, and Auditor 
of Eton Union, Regina v. 



207 
247 
194 
2 
451 
119 
457 
123 
126 
511 
522 

599 
158 
349 
305 
101 
192 



... 314 



FAOE 

223 
174 
169 
12 
518 
476 



C. 

Calthrop, Fletcher v. 

Cambridge, Mayor of, Regina v. .. 
Casterton, Inhabitants of, Regina v. 
Catterall, Inhabitants of, Regina v. 
Chatham, Inhabitants of, Regina v. 

Chawner V. Cummings 

Cheshire, Justices of, Regina v. 596, 602 
Chiswick, Inhabitants of, Regina v. 4 

Clarke, Regina t; 109 

Clarson, Peters v 55 

Coles, Regina t; 414 

Cornwall, Justices of, Regina v. ... 27 
Coventry, Archdeacon of, Regina v. 113 

Crastell, Tennant V. 528 

Cuddington, Inhabitants of, Regina v. 369 
Cummings, Chawner v 475 



D. 



Dalby, Remington v. 

Denbighshire, Justices of, Regina v, 
Derbyshire, Justices of, Re^a v. ... 

Dobson, Sir Richard, and Others, Re- 
ginav. ••• ... •.• ••• 

Downey, Re,,. ••• ••• ••• 

Down Holland, Inhabitants of, Re- 
gina v. ••• ..• ••• ••• 



E. 



161 
547 
865 

434 
816 

441 



East Rainton, Regina V 327 

East Sussex, Justices of, Regina v, 167 

Justices of, Regma V. 889 

fCkinv.Flay 317 

b 2 



Tifi 



INDEX TO CASES. 



Ellis, Regina v. 
Ex parte Bla3mey 



rough 



Clerk of West Riding ... 

Duke of Marlborough ... 

' Gray ... ... ••• 

Overseers of Wellingbo- 



PAOE 

114 
119 
457 
26 
116 

430 



F. 



Farthinghoe, Inhabitants of, Regina v. 46 

Femyhough, 12^ 596 

Fewston, Inhabitants of, Regina v.... 22 

Flay, Ekinv. 317 

Fletcher v. Calthrop 223 

Flintshire, Justices of, Regina v. ... 460 

Foleshill, Overseers of, Regina r. ... 421 

Frampton, Regina r. 29 

lytche, Jacklin r. ... : 539 



G. 

Grand Junction Railway Company, 

Regina v. 29 

QrBY,Esparte 116 

Great Bolton, Inhabitants of, Re- 
gina v 322 

Great Western Railway Company, 

Regina v. 85, 463 

Greatrex, Prickett r. 541 

Gieenaway, Regina v 393 

Ghiffin, Regina v. ... ... ..• 581 



H. 

Haines, Regina r 398 

Hall and Headley, Regina v, ... 442 

Hammond, Re 572 

Heanor, Inhabitants of, Regina r. ... 172 
Hertfordshire, Justices of, Reg. v, 183, 256 
Heyop, Inhabitants of, Regina r. ... 497 
HickHng, Inhabitants of, Regina v, 342, 433 
High Bickington, Inhabitants of. Re- 433 

ginav 1,529 

Holne, Inhabitants of, Regina v. ... 544 
Honley, Inhabitants of, Regina v, ... 145 
Hunter, Regina t; 154 



IV. Fytche 539 

v. Brook 101 

418 




PAGB 

527 

594 

8 

326 

584 

296 



K. 



Keighley, Inhabitants of, Regina v. 
Kemlworth. Inhabitants of, Regina v. 
Kesteven, Justices of, Regina v. ... 

Killerby, Regina r 

King's Lynn, Recorder of, Regina v. 

Kings ton-upon- Hull Dock Company, 

Regina v. 



L. 



Lancashire, Justices of, Regina v. 77, 320 

Latchford. Regina v, 147 

Leeds, Inhabitants of, Regina r. 23, 52 
Lidford, Inhabitants of, Regina v. ... 50 
Lilleshall, Inhabitants of, Regina v. 262 
Lindsey, Justices of, Regina V. ... 603 
Llanbeblig, Inhabitants of, Regina v. 59 
London, Justices of, Regina r . ... 548 



M. 

Macclesfield, Inhabitants of, Regina t;. 
Manchester, Inhabitants of, Regina v. 
Marlborough, Duke of. Ex parte ... 
Merionethshire, Justices of, Regina v. 
Inhabitants of, Re- 



gina t; 

Middlesex, Justices of, Regina v. ... 

, Justices of, Regina v. (St. 

Pancras v, St. John's, Hackney) . . . 

Milner, Regina t; 

M* Naugh ten, Regina v 

Molesworth, Regina V 

Montgomeryshire, Justices of, Re- 
gina r. 

Moore, Regina v 

Mortlock, Regina t;. 



N. 

Neville, Regina r 

New Sarum, Inhabitants of, Regina v. 

New Windsor, The Mayor of, Re- 
gina r. 

Newton Ferrars, Inhabitants of, Re- 
gina V. 

Norbury, Inhabitants of, Regina v. ... 

Norfolk, Justices of, Regina t;. 

North Howran, Inhabitants of, Re- 

f gina V. ... ••• 



5» 

346 

26 

6S 

111 
336 

588 
338 
462 
567 

333 

83 

32^ 



480 
372 

72 

568 
519 
110 

569 



INDEX TO GASES. 



a 



O. 

Onsbw, Regina v ; 

Orton, Inhabitants of, Regina v, 
Oxford, GKiardians of, Regina v. 
Ozley, Regina t; 



FA6B 

178 

243 

88 

95 



Pajmter, Regina v 293 

Peters v. Clarson 55 

Pocock, Regina 9 534 

Poole, Mayor of, v. Attorney-General 158 

Poor Law Commisaioners, Regina v. 583 

Prickett r. Greatrex 541 



R. 



Radnor, Justices of, Regina v, 
Ratcliffe Culey, Iniiabitants of, Re- 
gina v. • •• ••• ••• *•• 

l?e AUpress 

— Boothroyd 

— Downey ••• ... ... 

— Femyhough 

— Hammond •.« ••• ••• 

— Tordoft ••• ••• ••« «•• 

— Turner ••• ••• ••• ..• 

"•^ w aiicer .•• ••• •.• ••• 

Regina 



V. Aberdaron, Inhabitants of 
V, Acton, Overseers of 

V. Altringham, Inhabitants of 

V, Anglesea, Justices of ... 

r. Appleby, Inhabitants of... 

r. Ashburton, Inhabitants of 

V. Aylesbury- with -Walton^ 

Overseers of 

V. Badcock* Taunton Market, 

Trustees of 

v. Bakewell, Inhabitants of 

V. Bedingham, Inhabitants of 

r . Birmingham^ Inhabitants of 

v. Blathwayte 

V, Bk)xham, Inhabitants of 

V. Bolton, Recorder of 

V. Bradford, Inhabitants of 

17. Bridgman and Others, Jus- 

UCcS, OCC .*• ••• ••• a.. 

V. Brighthelmstone, Inhabit- 
ants of 

v. Bristol, Recorder of 

V. Buckingham, Justices of 

V. Bumham, Overseers of, 

and Auditor of the Eton Union . . . 

V. Cambridge, Mayor, &c. of 

■ V. Casterton, lohabitants of 



556 

565 
269 
511 
316 
596 
572 
418 
574 
14 
51 
420 
348 
520 
250 
524 

560 

207 
247 
2 
451 
457 
123 
126 
522 

599 

349 
305 
192 

314 
174 
169 



PAGB 

Regina t;. Catterall, Inhabitants of 12 

r. Chatham, Inhabitants of 518 

V. Cheshire, Justices of 596, 602 

r. Chiswick, Inhabitants of 4 

V.Clarke 109^ 

V.Coles ... 414 

V. Cornwall, Justices of ... 27 

V. Coventry, Archdeacon of 113- 

V. Cuddington, Inhabitants of 369 

V.Denbighshire 547 

V. Derbyshire, Justices of ... 365 

V. Dobson, Sir Richard, and 

Others 434 

V. Down Holland 441 

V. East Rainton 327 

V. East Sussex, Justices of 167 

V. East Sussex, Justices of 389 

V.Ellis 114 

V. Farthinghoe, Inhabitants 

oi ... ... ... ... ... 40 

V. Fewston, Inhabitants of . . . 22 

V. Flintshire, Justices of ... 460 

V. Foleshill, Overseers of ... 421 

V. Frampton 29 

V. Grand Junction Railway 

Company ... 29 

V. Great Bolton, Inhabitants 

of 322 

V. Great Western Railway 

Company 85,463 

V. Greenaway 393 

V. Grriffin ... 581 

V.Haines 398 

V. Hall and Headley ... 442 

V. Heanor, Inhabitants of ... . 172 

V. Hertfordshire, Justices 

of 183, 25^ 

V. Heyop, Inhabitants of ... 497 

V. Hickling, Inhabitants of, 342, 433 

V. High Bickington, Inhabit- 
ants of 1, 529 

V. Holne, Inhabitants of ... 544 

V. Honley, Inhabitants of ... 145 

V. Hunter 164 

V.Johnson..'. 418 

——V.Jones 531 

V. Keighley, Inhabitants of 527 

V. Kenilworth, Inhabitants of 549 

V. Kesteven, Justices of ... 8 

V. Killerby 326 

V. King's Lynn, Recorder of 584 

V. Kingston-upon-HuU Dock 

Company ... ... ... ... 296 

V. Lancashire, Justices of, 77, 320 

V. Latchford 147 

V. Leeds, Inhabitants of 23, 52 

— — V. Lidford, Inhabitants of ... 50 



INDEX TO CASE8. 



PAOB 

Bcgina v. I^illfuhall, InhabitantB of 262 
" ' V. LindBef* Juatioes of ... 603 
— -— — 9. TJanhehlig, InhabitantB of 59 
n. London, Justices of 648 

— V. Macclesfield, Inhabitants of 59 

t;. Manchester, Inhabitants of 346 

V. Merionethshire, Justices of 65 

V, Merionethshire, Inhabit- 
ants of ••• ... ••• ••• III 

■■ t;. Middlesex, Justices of ... 336 
■■ v. Middlesex, Justices of (St. 

Pancras v. St. John's, Hackney) 588 

— V. Milner 338 

v. M'Naughten 462 

— — r. Molesworth 567 

V. Montgomeryshire, Justices 



of 



•t;. Moore 

V. Mortlock 

• t;. NeviUe, Clerk 

> v. New Sanim, Inhabitants of 

• t;. New Windsor, the Mayor of 

• V. Newton Ferrars, Inhabit- 



ants of 
V. 

V. 

V, 



ants of 

' ' V. 

V. 

V. 

V, 



Norbury, Inhabitants of 
Norfolk, Justices of 
North Howran, Inhabit- 



Onslow ... 

Orton, Inhabitants of ... 

Oxford, Guardians of ... 

Oxley 

>- V, Paynter 

v. Pocock 

r. Poor Law Ck>mmissioner8 

ti. Radnor, Justices of 

V, Ratcliffe Culey, Inhabit- 
ants of 
— — t;. Ripon, Inhabitants of ... 

v. Rothwellf Inhabitants of 

— — r. Rose ... ... ••• 

V. Rose and Another, Jus- 
tices, &c. 
v. Saffron Walden, Inhabit- 



ants of 

V. 



St. Andrew's, Holbom, 



333 
83 
329 
480 
372 
72 

568 
519 
110 

569 
178 
243 
38 
95 
293 
534 
583 
556 

565 

309 

362 

63 

598 

557 



Governors of 67 

V. St. Anne's, Westminster, 

Inhabitants of 261,579 

v. St. George's, Bloomsbury 438 

V. St. Giles's-in-the-Fields, 

Inhabitants of 6,578 

V, St. Lawrence, Appleby ... 190 

V. St. Margaret's, Westmin- 

ftter 328 

1;. St. Martin's, New Sarum« 

Inhabitants of 554 



PAGE 

Regina v. St. Mary's, Lambeth ... 359 

V. St. Mary's, Lambeth, 

Churchwardens of 382 

' V. St. Mary's, Lambeth, 

Guardians of 589 

V. St. Mary's, Southampton, 

Inhabitants of 589 

V. St. 01ave*s, Southwark, 

Inhabitants of 24 

' V. St. Paul's, Covent Grarden, 

Inhabitants of 292 

V, St. Sepulchre's, Northamp- 
ton, Inhabitants of 140 

' V. Scammonden, Inhabitants 

\M •■. ... ... ... TtrsO 

V. Sevenoaks, Inhabitants 

of 264, 280 

V. Sewell 444 

V, Shipston-upon-Stour, In- 
habitants of 41 

V, Shitlington, Inhabitants of 432 

V, Skipton, Inhabitants of, 57, 119 

©.Smith 484 

V, South Ferriby, Inhabitants 

of 122 

©.Stamford 163 

■ V. Stockton-upon-Tees ... 354 

V. Stoke Bliss, Inhabitants of 61 

v. Surrey, Inhabitants of ... 4 

©. Surrey, Justices of, 41 1, 491 , 526 

ti.Tkylor 288 

v. ToUemache 39 

V, Totley, Inhabitants of ... 363 

V. Totness Union, Guardians 

of ... ... ... ... 3oo 

V. Walbottle, Inhabitants of 550 

V, Walker and Others, Jus- 
tices 600 

V. Warwickshire, Justices of 173 

V. Wellington, Inhabitants of 431 

V, West Riding, Justices of, 53, 

132,493 

V. West Riding, Justices of 

(St. Pancras v, Bradford) ... 332 

V, Westhoe, Surveyors of ... 504 

V. Wiggenhall St. Germain's, 

Inhabitants of 20 

». Willatts 343 

V. Willcock 306 

C.Wilson 25.163 

t;. Worcestershire, Justices of 521 

V.Wood 26 

V. Wooldale, Inhabitants of 134 

— - V, Worthcnbury, Inhabitants 

of ... ... ••• ••• 352 

V, Wrexham Regis, Inhabit- 
ants of ••• ■•• ••• ••• 479 



IVDEX TO CASEa 



PA6B 

R^ina v, Yelvertoft, Inhabitants of 200 

Remington V. Dalby 161 

Ripon, Inhabitants of, Regina v. ... 309 

Rothwell. Inhabitants of, Regina v. 362 

Rose, Regina v 63 

Rose and Another, Justices, Regina v. 598 

Rowley o. Reginam 156 



S. 



Saffron Walden, Inhabitants of, Re- 
gina V. ... ... ... ... 557 

St. Andrew's, Holbom, Gbvemon of, 

Regina v. 67 

St. Anne's, Westminster, Inhabitants 

of, Regina v 261, 579 

St. George's, Bloomsbury, Inhabit- 
ants of, Regina v. 438 

St. Giles's-in-the- Fields, Inhabitants 

of, Regina o 6,578 

St. Lawrence, Appleby, Regina v. ... 190 
St. Margaret's, Westminster, Regina o. 328 
St. Martin's, New Sarum, Inhabit- 
ants of, Regina v. 554 

St. Mary's, Lambeth, Inhabitants of, 

Regina v, 359 

St. Mary's, Lambeth, Churchwardens 

of, Regina V 582 

St. Mary's, Lambeth, Guardians of, 

Regina v. 589 

St. Mary's, Southampton, Inhabitants 

of, Regina t; 589 

St. Neot's, Guardians of. Saunders v, 531 
St. Paul's, Covent Garden, Inhabit- 
ants of, Regina v. 292 

St. Sepulchre's, Northampton, In- 
habitants of, Regina t; 140 

Saunders v, St. Neot's, Guardians of 531 
Scammonden, Inhabitants of, Re- 
gina o 448 

Sevenoaks, Inhabitants of, Regina t>. 

264, 280 

SeweD, Regina v 444 

Shipston-upon-Stour, Inhabitants of, 

Regina v. 41 

Shitlington, Inhabitants of, Regina v. 432 
Skipton, Inhabitants of, Regina v, 57, 119 

Smith, Regina t; 484 

South Ferriby, Inhabitants of, Re- 
gina v 122 

Stainford, Regina t;. 163 

Stamp V. S wee tland ... ., 425 



PAOS 

Stockton-upon-Tees, Regina V. ... 354 
Stoke Bliss, Inhabitants of, Regina v. 61 
Surrey, Inhabitants of, Regina v. ... 4 
Surrey, Justices of, Regina v. 411,491,526 
Sweedand, Stamp v. 425 



Taylor, Regina V 288 

Tollemache, Regina V 39 

Tordoh,Re 17 

Totley, Inhabitants of, Regina v. ... 363 
Totness Union, Guardians of, Regina v. 

383 
Turner, Re 574 



W. 

Walbottle, Inhabitants of, Regina v. 550 

Walker, Re 14 

Walker and Others, Justices, Regina v. 600 
Warwickshire, Justices of, Regina v. 1 73 
Wellingborough, Ex parte the Over- 
seers of 430 

Wellington, Inhabitants of, Regina v. 431 
Westhoe, Surveyors of, Regina ». ... 504 
West Riding, Justices of, Regina v. 53, 

132, 493 

— , Justices of, Regina v. 

(St. Pancras v. Bradford) ... 332 

White, Barnes v 194 

Wiggenhall St. Germain's, Inhabit- 
ants of, Regina v. 20 

Willatts, Regina v. 348 

Willcock, Regina V. 306 

Wilson, Regina V 25,163 

Winslow Union, Guardians of, Re- 
gina V. 
Worcestershire, Justices of, Regina v. 

Wood, Regina Xf 

Wooldale, Inhabitants of, Regina v. 
Worthenbury, Inhabitants of, Re- 
gina V, ... ... • . • • • • 

Wrexham Regis, Inhabitants of, Re- 
gina V, ... ... ..• ••• 



456 

521 

26 

134 

352 

47 



Yelvertoft, Inhabitants of, Regina v. 200 



BITTLESTON & SYMONS'S REPORTS 



OF 



ABGUED AND DETERMINED IN THE LAW COURTS AT WESTKINS TR. 



JEeuter Term, 1844. 



Q.B. Saturday, April 20. 

Thx QyxEN V. The iNHABiTAirrs ov High Bickinoton. 

// tr M/ tufici£ni emdenee qf ekarg^akUUy, that the paupm^ MUdm that 9he is ckargtabh to the 
piriih qf A, or thai the relieving officer etatea that ehe is chargeable. The reUrf which eoneti' 
tuiet ehargeability muet be elated. 

ON an appeal) at the Devonshire Quarter SessionSy against an order for removing 
Ann Ford and her children from the parish of Atherington to High Bicking« 
too, the order was confirmed, subject to a case of which the material facts were as 
follows : — 

The examination of Ann, after shewing her settlement and that of her children in 
the appellant parish, thus stated their chargeabilitj in Atherington *. — *' I and my said 
[ chfldren are inhabitants of the said parish of Atherington, and are chargeable to the 
aud parish.** Another witness stated — ** I am one of the relieving officers of the 
imion of Barnstaple, and administer the relief ordered for the paupers of the said 
parish. The saia Ann Ford and her said children (naming Uiem) are nam chargeable 
to the said parish of Atherington " 

The grounds of appeal set forth that the examination contained no legal evidence 
tiiat the said paupers, or any of them, were chargeable to the said parish of Ather- 
ington at the time of the application for or makmg the said order of removal ; and 
tUs was the question which the case submitted to the Court. 

Bawe (with whom was Bevan)^ in support oT the order.— There is, at leasts a cer- 
tain ftaiount of evidence in the examination that the paupers were chargeable. Pre- 
dae legal evidence of the facts which constitute ehargeability is not essential to the 
Talidiqr of the owier. {R. v. EcdesaU Bierloto, 11 Ad. & Ell. 607 ; R. v. Lffdeard 
St. Lanrenee, ibid. 616.) The 85 Geo. 3, c 101, s. 1, requires that a person shall 
have " become actually chargeable ** in order to his removal. If so, to say that he is 
chargeable, implies that he has received relief. IVorision is made by 5 & 6 Vict. c. 
67, for certifying ehargeability as directed by that Act; but this does not supersede 
other modes of proving the fact. 

Merioale, contr^, was not called upon. 

Lord Denman, C. J — To say that a person is chargeable is not sufficient proof 
of ehargeability. There is an inference in law stated, but that is not enough. The 
vol. I. B 



^ MAGISTRATES* GASES. 

4li^ Mid the relief administered are not stated. The respondents ought to have 
jlujfti^ ll^ and to have shewn how the pauper was reh'eved. 

V^ATTisoNy J. — If the reh'ef was given, it was perfectly easy to have said so. 

Williams and Wightman, J J., concurred. 

Order of Sessions quashed, (a) 

Thb Quebn v. The Inhabitants of Bedingham. 

A cowtphini in writing, ttpon which an order of removal it obtained, purporting to be the com- 
plaint qfone oveneer, is neverthelua good, if the complaint wot in fact made by him on beha\fqf 
all the parish officers, 

JVhere a father and his children are removed to their father* s tettlement, it it not necessary, 
for the examination and the order of removal^ to state affirmatively that the said children have not 
gained any settlement of their own, if they shew thai the children are settled in the father* s parish. 

The examination, after setting forth a settlement by hiring and service, set forth several acts oj 
relitf to the pauper whilst residing out of the appellant parish, and, among others, attendance 
on his wife during her confinement with her four children. The ages of the children were given, but 
not the dates of the several acts of relitf. Held, that the statement qf relief was sufficiently given. 

The examination stated a settlement by hiring and service, and the subsequent administration of 
relirf whilst the pauper was residing out of the parish; the grounds of appeal stated that the 
pauper did not gain a settlement in the appellant parish ; at the hearing, the respondents gave no 
evidence of the hiring and service, but relied on the relief administered. Held, that the appeU 
lants were entitled, under the above ground qf appeal, to shew that the relief was administered 
by mistake. 

ON an appeal at the Norfolk Quarter Sessions against an order for the removal of 
Peter Quantal, his wife, and four children, from the parish of Bedingham to 
the parish of Earshara, in the said county, the order was quashed, subject to a case of 
which the material part was the following : — 

The order of removal purported to be made on the complaint of '* the overseers^* 
but the complaint of chargeability itself was signed by one only of them. 

The examinations set out a settlement gained by the husband by hiring and ser- 
vice, and subsequent relief administered to him and his family at several times, bv 
the parish officers of the appellant parish, whilst he was residing in Bedingham, and, 
inter alia, attendance by the parish surgeon on his wife, during her several confine- 
ments with her four children ; but no mention was made in the examinations of the 
date of the service, or of the dates at which the relief was given. 

The grounds of appeal relied upon were — 

1st. That no sufficient complaint had been laid before the removing magistrates ta 
give them jurisdiction. 

2nd. That the said husband did not gain a settlement in the appellant parish. 

Srd. That the examinations and the order of removal were insufficient, so far as 
regarded the children who were above seven years of age, for not stating that they 
had not respectively gained any settlement of their own. 

4th. That the examinations were insufficient, for not shewing the date of the hiring 
and service, and the dates of the several acts of relief. 

5th. That the hiring and service was insufficient, the contract having been dis- 
solved within the year. 

At the hearing, it appeared that the relief was given by mistake. This evidence was 
objected to by the respondents, as not being admissible under the grounds of appeal 
delivered by the appellants. The Sessions overruled Uie objections by both parties, 

(a) This if an important case. It extends the the circumstances which constitute the o&argeability 

requirements as to proof of chareeability laid down must be given and proved in the <or<imination. The 

in the recent case of Reg, v. Black Callerton (2 Per. circumstance, that the panp«r was in the workhouse 

& Dav. 475). In tlmt case a notice in writing of would, for instaneo, suffice, as in the case of Reg, 

chargeability had been sent to the appellant parish, v. J9ac*s (2 Gale & Dav. 560) ; but some such evi- 

but there was no statement of chargeability in the dence must be given. A statement such as that 

examination. Denman, C.J. held, that this omis- made in the case of Reg, v. Rotherham (2 Gale & 

sion was fatal, but said, ** If we were to decide Dav. 521), viz. ** J. V. T. and J. are poor and 

setting out the fact of chargeability, there chargeable to Sheffield,** will no longer suffice, 

speculative removals; *' and Patteson, J. Great attenUon must be paid to this point hence- 

;**.thefact'' should appear in the ezami- forth, for it has been the constant practice mercI^T 

~ It Reg, V. Hiah Bickington decides that to state the fact of chargeability.— 5. 



MgMtsettini 

/1p 



ihirgcability does not tuffioe ; bot that 



EASTER TERM, 1814. 3; 

admitted the evidence offered by the appellant, and quashed the order of removi^y. 
subject to the opinion of this Court upon the following points : First> whether there 
had been a sufficient complaint by the overseers to the justices who made the order 
to give them jurisdiction ; and, secondly, whether the appellants ought to have been 
allowed to shew that the relief given by them had been given by mistake^ although it 
is Dot distinctly stated that such was the case in the grounds of appeal* 

Bigg* Andreros, Q.C. and Gunnings in support of the order. — ^The complaint must 
be made by the churchwardens and overseers (13 & 14 Car. 2, c. 12), and the order 
must state the complaint as by the overseers, which is the foundation of the justices* 
juiisdiction. (R. v. Harley, Andrews, 361 ; JV. Rivers v. St. Peter's, 2 Salkeld, 492.J 
The signatures of the majority suffice, but these must concur. (R. v. Cambridgeshire, 
7 Ad. & Ell. 480 ; R. v. Lancashire, 5 B. & Aid. 755 ; R, v. James Beeston, 3 Term 
Rep. 592.) Here one only did the act> and the defect cannot be cured by subse- 
quent assent. 

As to the second ground, relief given to the pauper by a parish when residing out 
of it is but prima facie evidence that he is settled in it, and may be rebutted, and 
proof given that the circumstances under which it was given gave no settlement. 
Archbold (with whom was Palmer), contra. 

The complaint need not be given in writing, and may have been given by the over- 
seer for the majority. {^Archbold was stopped by the Court on this point.] As 
regards the other ground of appeal, the appellants are precluded by 4 & 5 Wm. 4, c^ 
76, s. 81, from giving evidence not stated in the grounds of appeal, which must be in 
itself sufficient to apprize the respondents of all that is to be set up. (R. v. Middle^ 
ion in Teesdale, 3 Per. & Dav. 473; R. v. Broseley, 7 Ad. & £11. 423.) If the 
appellants do not deny the respondents' case as it is stated in the examination, they 
thereby admit and are bound by it. (A. v. Hockxioorthy, 7 Ad. & Ell. 492.) 

Lord Denman, C.J. — The Sessions are right on all the points. The complaint 
was clearly made on behalf of all the parish officers, though made nominally by one 
only. It 18 so stated in the order of removal^ and so admitted at the hearing of the 
appeal. The relief given appears to have been set out with sufficient certainty, as 
relief given from time to time since the marriage of the paupers ; inter alia, at the 
times of the births of their several children, which were deGnitely fixed, and the 
sges of the children were given. The examination and order were perfectly good^ 
^th regard to the children above the age of nurture, as they stated them to be 
settled in the appellant parish, and it was unnecessary to allege affirmatively that they 
had not gained any settlements of their own. No doubt, relief is a primd facie 
evidence of a settlement; but the evidence that the relief was administered by 
mistake was properly received under the ground of appeal, that the said father had 
not gained a settlement in the appellant parish. 

Patteson, J.— The complaint suffices. It need not be in writing, under 13 & 14 
Car. 2 ; but must be made on behalf of the overseers. It was admitted to be so here ;. 
and thus the complaint of one is the complaint of all. On the other point, to say 
that the pauper never acquired the alleged settlement, is equivalent to an admission 
that the relief was given, but that it was given under a mistake ; though it might 
have been better to have stated this more plainly. 

Williams, J. — The overseer acted by the authority of the other officers, which 
is sufficient. l*he respondents having abandoned the settlement by hiring and 
iervice, and having only offered evidence of the relief given, it is surely clear that the 
appellaQts may explain the grounds on which this was done. 

Wightman, J. — It is no contradiction of the fact^ that the complaint was on 
behalf of the othor officers, that it was made in writing, though it is not required it 
should be. The relief given is not a head of settlement, but given in virtue of one* 
It is enough if the appellants deny the settlement, and then give evidence that the 
relief was given under a mistaken impression, (a) Order of Sessions confirmed. 

(a) The practical result of this very instractire ment. The relief being no settlement, but merelj- 

case seems to be this :~Wherever a settlement, evidenceofonein the shape of an admission, maybe 

together with eitra-parochial relief, is set up, the explained, by sbewiag that there was a mistake, and 

whole question turn* upon the yalidity of the settle- no lettlrment. The question of the setttementy. the- 

B 2 



4,1 MJUSmTBATBS* OMEB^ 

T^v QoBBirvi Tta.IimABiTAMTS or Ctoswicc. 

Jftpftwing a ietilement hff parith mpr^^ticethip since the 56 Geo, 3, c. 139, the order for the apprtiu 
/toetAtp and aUowanee of the indeiUure by the magietratee must he proved. It is not sufficient to 
prem the exeeutiom qf the indenhtre hf thepsarieh officers and the master. 

ON an appeal against an order for the removal of a pauper^ the Sessions con6iined ' 
the ord^r, subject to the opinion of this Court upon a case of which the 
ftcts were these :«- 

The settlement relied upon was by a parish apprenticeship since the 56 Geo. 3; 
c 189, and the question was, whether it was su£Scient to prove the execution of the 
indenture of the apprenticeship bpr the parish officers and the master, without 
proving the order for the apprenticeship and allowance of the indenture by. the. 
magistrates. 

AfMphus, sen. in support of the order of Sessions. 

Prendergastj contri, was stopped by the Court. 

By the Court. — ^It is a gooa objection. Order of SiMsions quashed. 



Q.B. Monday^ April 22. 
Tttx QuBBK V. The Justices of Surrey. 

The notice qf grounds qf tqtpeai against an order of removal must be signed by a majority of the 
ehmrchwsrdens and overseers of the appetUmi parieh, in all cases in which the parish is one of 
several forming a union under the Poor Law Amendment Act. The words q/ the 6lst sect, 
qf that Act — '* any three or more of such guardians** — aj^ly only to the case qf a single parish ; 
and it is only under the Oilbert Act that a sole guardian has authority to give such notice. The 
signature qf a third person, though purporting on the face qfit to be for one of the proper ofiicers, 
is not sufficient, at all events without proqfofihe authority qfsuch third person. 

ON the removal of a pauper from the parish of Wimbledon, in the county of 
Surrey, to the parish of Allhallows the Great, m the city of London, a notice 
of the grounds of appeal was served upon the overseers of the poor of the former 
parish ; of which the following are the material parts : — 

'< Now we, the undersigned churchwardens and overseers of the poor of the said 
parish of Allhallows the Great, do hereby give you notice," &c. 

- Signed, William Ryde. ^ Churchwardens and Overseers of the 

For Wm. Hammo^^^^ ^^ -' '^^ P^«^ -' A"»^^^-* *^ 

William P. Hammond. J ^^^^' 
John Elsden, Guardian.*' 

When the appeal came on for trial, the above notice was objected to on the part of 
the respondents as insufficient, on the ground that it had not been signed by a 
majority of the churchwardens and overseers of the appellant parish; and the 
Sessions so holding, dismissed the appeal, and confirmed the order of removal. In 
last Michaelmas term, a rule was obtained by the appellants^ calling on the justices 
of Surrey to shew cause why a writ of mandamus should not issue, commanding 
them to enter continuances and hear the appeal. The parish of Allhallows the 
Great is one of ninety-eight parishes forming the city of London Union ; it has two 
churchwardens and two overseers, and elects a single guardian as a member of the ; 

mistakeyandtheexpUuiatioaof thereKef giTen^are^in was in itself a binding settSement, instead of bWng 
point of effect, one and the ^ame thing ;and| therefore, perfectly immaterial as soon as the yalidity of the 



to apprize the opposite party of the one, is to ap- prior settlement is questioned. The giving of relief 

prize them of all. To say that there is no settle- out of a parish is not an estoppel, Uke the rccendng 

ment, without denying the relief, is to admit the of a pauper under an order of removal. It will be 

relief, and assert the mistake which explains it. At well to compare th« law in this somewhat similar 

the same time, simple as is the deduction, there case, as laid down in R. v. Woodchester (Burrow, 

ought to be none needed. Why do parishes spare S. C. 191), R» v. Fewsion (reported post^ p. 22), 

words to make what they mean so clear that tnere and the cases cited by Mr. Archbold in his ** Poor 

can be no possibility of cavil ? Mr. Justice Patte- Law," p. 561 et seq, shewing that the parish re- 






remark, that it might have been better to have cdving a pauper under an order of removal is con- 
1 stated the intention to shew the mistake, eluded by it from ever after disputing the settlement 



be remembered. The probability is, in then set up. — 5. 
that the respondents imagined that relief 



rxAn£KTBKM,'lM4w 15 

iMffd of giMidiuM gfer the Mdd^utiioo. When thaabofe notice of grounds of appeil 
net signed, John Bbden was thcgufdian 10 elected hv the said parish, Thomas 
Geoch vae one of the oreneers of the said parish, Williani Ryde was one of the 
dnrehwairdens, and WiUiam Hammond the other; but the said William Hammorid 
was absent on business in a distant part of the country ; and, at the h«uing of the 
npsal« there was no eyidence that Wm. P. Hammond bad any authority to sign for 
Wn. Hanraioild, or that Wm. Hammond had subsequently ratified that signature. 
The aboye facts appeared upon the affidayits for and against the rule. 

WMlimgernnd Comer shewed causes — ^The notice of grounds of appeal must he 
signed by a majority of the churchwardens and oyerseers. {Rex y. The Justices 6/ 
W&nokk$hire, 6 Ad. & Ell. 87S ; and Rex y. The JuOket of Derbyshire, 6 Ad. & £11. 
985.1| All the ** parish officers'* haye not authority to giye the notice ; that descrip- 
tion is too general, and would include a yariety of other officers as well as the church- 
wardens, oyerseers, and guardians. It is true, that term is used in the report of Rex y. 
The Jmtiiees 0/* WanmcMiiref in the 6th yol. of Adolphus and Ellis's reports ; but then 
it must be taJcen with reference to the context, which applies only to churchwardens 
«id ov e rseers ; and in the report of the same case in the Law Journal (6 N. S. M . C» 
118), the expression '< parish officers" does not occur. The signature of Elsden in 
this case, therefore, is of noayail; he had no authority to sign either as a parish 
officer or as a guardian, this not being the case- of a union under 22 Geo. 3, c 8S, 
where the guardian has the sole power. Reg. y. The Justices of the West Riding 
of Yorkshire (Harniey y. RotkweO) (13 Law Journal, N. S. M. C. 89, 7 Jur. 1182) 
-m a ffistinct authority to that effisct The guardian appointed under the Poor Law 
Amendment Act is not the guardian of the parish, but of the union. Then the signa- 
ture of ft third party will not suffice. (Rex y. The Justices of Worcestershire, 1 WilL 
Won. €c Hodges, 152.) There, though the signature aopeared to be by the attorney 
fi»r the appellant parish, '<as attorney for and on behalf of the ohurchwardens and 
ererseers, and there was eyidenee that the attorney had receiyed authority to s^, 
die ^(nature was held bsnffieient. Here there was no eyidenee of such authority. 
Hie Bgnature, therefore, of Wm. P. Hammond for Wm. Hammond may be strode 
out, and then the notice is not signed by a majority df the churchwardens add 



Chamod and Amould^ contriU — If either William P. Hammond or John Elsden 
had authori^ to sign this notice, then there is a signing by a majority of the parish 
officers ; and it is submitted that that is enough. Then, first, as to the signature by 
Hammond, Reg. y. The Justices of Worcestershire (1 Will. Well. & Hodges, 152) is 
distineuislttble. In that case the signature was by the attorney alone, for all the 
churchwardens and oyerseers ; and presented no appearance of deliberation. Here, 
sne churchwarden and one oyerseer sign the notice, and a third party on behalf of the 
sdier diarchwttrden. The deliberation which precedes the signing is the important 
matter, — not the act of signing ; and the Court cannot presume that the church- 
warden who signs by proxy was absent from the former because he personally took 
DO part in the latter. An oyerseer might not be able to write: could he not 
authorize another to sign for him? [WioHTMiiN, J. — Must not that authority be 
proyedn Jn such a case as this it would be presumed. Secondly, Elsden's signature 
win sulSce. The 8lst section of the Poor Law Amendment Act (4 & 5 Wm. 4, c. 
76) requires the signature of '* three or more of such guardians ;** but that cannot 
apply to this case, where there is only one guardian of the parish. PPatteson^ J. — 
There is no such thing as the guardian of a parish under the Poor Law Amendment 
Act; the guardian is the officer Of the union elected by the parish.] It does not 
appear on we face of the notice whether Elsden signed as a guardian of the union or 
as a ^ardian of the parish ; nor is it necessary that it should. He is, at all eyenU, 
a parish officer. 

Lord Dsnmak, C J. — ^I think that the Court of Quarter Sessions was quite right 
in refusing to hear this appeal upon a notice of grounds thus signed. Where the 
Act of Parliament requires the signature of certain officers, it is the duty of the 
Court, howeyer unpleasant it may be to dismiss an appeal upon such an objection, to 
see that the requisites of the Act are complied with. The signature of one man for 



« IfAGISTSATES' GASES. 

^another is not Che signature of that other, unless it appear that the one had authority 
to sign for the other ; and even if, as is suggested, the deliberation of the par- 
ties before they sign is the really important thing, and the signature is only the 
result of that deliberation, then it may have been the deliberation of him who signs, 
and not of him for whom he purports to sign. Then, as to the signature by the 
^ardian, I do not think that he is one of the officers authorized to sign this docu- 
ment. If the signature by a majority of " the parish officers" is sufficient, 1 don*t 
know who might not sign ; for, as was observed in shewing cause against this rule, 
the term " parish officers" would include a great variety of officers, besides church- 
wardens and overseers. A single guardian has a peculiar power under the 34th 
section, but there is nothing in the Act, except the interpretation clause, which can 
.entitle any one to say that the guardians are parish officers in the sense^ and for the 
purpose, contended ror by the appellants. 

Fattbson, J. — I am of the same opinion. The 81st section of the Poor Law 
Amendment Act requires that the notice should be signed by a majority of the over- 
.jeers, or by the guardians of the parish, or any three or more of them, and not by a 
. majority of the parish officers; otherwise it might be a difficult question to decide 
who are parish officers under the interpretation clause. In this case, 1 do not think 
'that there are any guardians of the parish ; where there is a union of parishes under 
this Act, the guardians are officers of the union, not of the parish ; it is only where 
they are appointed for a single parbh, under sect. 39, that they are officers of the 
pansh, and as such have authority, under the 81st section, to sign a notice of appeal. 
Upon the other point, I am also clearly of opinion that the signature of Wm. P. 
Hammond for Wm. Hammond was no signing by the latter. 

WiGHTMAN, J. — ^I also am entirely of the same opinion. If one person si^ns a 
document for another^ in order to make that signature the signature of him for whom 
it purports to be made, there must at all events be evidence ol the authority of the 
person signing ; and here there is none. Every thing depends upon the statement 
of the party actually signing ; and we can presume nothing in favour of his authoriiy. 
As to the other point, the &th section expressly provides that no ex officio or or her 
iguardian shall have power to act in virtue of such office, except as a member and at 
a meeting of the board of guardians for the whole union. Rule dischargid. 



) 



Q.B. Wednesday, April 34. 
The Queen t^. The Inhabitants of St. Giles-in-the-Fields. 

'7%e payment of a shilling more than once during the space of eeveral weeks by parish officers tn a 
pauper resident in theparishf qfter inquiry made at the Boardy whether he belonged to then pa. t^h .- 
the taking him subsequently into the workhousey situate within the parish ; aud afterwards trend- 
ing him^ at one time to one establishment belonging to a contractor for the mainlenawe oj the 
poorf on behalf qf that and other parishes s and at another, to another establitthment oj tt* .sume 
kinds in both qf which he was maintained at the expense qf the said parish, and both oj t fnch 
were locally situate out of the said parish: these are circumstances which afford no evident t ,j a 
settlement in the relieving parish; and an order of Sessions, confirming an order qfremoixil ■> ade 
on such evidence, was quashed. 

. Establishments for the maintenance qf the paupers qf various parishes by contract, whtircer 
situate, as to all matters relating to the settlement qf each pauper inmate, are to be cows'nU'n i as 
integral parts of the parish by which their maintenance is d^ayed, 

ON appeal against an order of removal by two justices, removing William ( on- 
quorer, his wife, and family, from the parish of Ashton-under-Ly> «?- i'^ the 
county palatine of Lancaster, to the parish of St. Giles-in-the-Fields, ii\ tl>e county 
of Middlesex, the Court of Quarter Sessions for the county palatine of Lan iottr, 
holden by adjournment at Salford, on the Srd of July, 1843, confirmed x\w «h t r, 
4nibject to the opinion of this Court, on a case of which the followiig wen the 
jcnaterial parts :-— 

In the vear 1823, the said William Conquorer, being a pauper in the parish <>< St. 
4}iles-in-ttie-FieIds, in the county of Middlesex, was sent to Cresbrook, in ( itv. 
^~'~ at the expense of the said parish of St. Giles, and remained at C risi.r(Kik 



EASTEB TERM, 18M. 7 

aatil July, 18S9^ when^ being out of work and in a state of destitution, he went 
direct from Cresbrook aforesaid to the parish of St. Giles aforesaid, for the purpose 
of obtaining relief. On his arrival in St. Giles-in-the-Fields, he applied to the parisfr 
officers for relief^ stating that he had just come out of Derbyshire ; and he received 
finom them a pair of shoes, and was desired by them to go back into the country 
lod get something to do. He applied again for relief on the Monday following^ 
from the parish officers of St. Giles-in- the- Fields, at their board, and received a 
ihilling after an inquiry made at the board, whether he belonged to their parish He 
received a shilling from them more than once during the space of several weeks. In 
the ensuing winter the said William Conquorer being again chargeable to the said 
ptrish of St. Giles-in-the-Fields, whilst living there, he was taken into the work- 
house of the said parish, which is situate within the limits thereof, and remained 
there for some months, until he was sent from thence, with other paupers, te 
Islington, out of the limits of the parish of St. Giles-in-the-Fields, to the esta- 
blishment of one Perry, a contractor for the maintenance of paupers on behalf of 
that and other parishes ; where he was maintained for some time at the expense of the 
nid parish of St. Giles. Shortly after leaving that establishment, the said Wil- 
film Conquorer, becoming again chargeable to the appellant parish whilst living- 
therein, was admitted, by order of the parish officers of the said parish of St. Giles- 
io-the-Fields, into the Surrey Asylum, which is a similar establishment, and locally 
ntuate out of the limits of the said parish of St. Giles-in-the-Fields. Upon these 
&cts it was contended, on behalf of the appellants, that Perry's establishment at 
Islington, and the Surrey Asylum, though locally situate in another parish, were 
nevertheless to be considered, quoad all matters relating to the settlement of each 
pauper inmate, as integral parts of the parish by which their maintenance war 
defrayed ; and as the relief given to the said pauper prior to his admission into 
Perry's establishment at Islington, was given to him whilst resident in the appellant 
parish, that there was no evidence of any such relief given by the appellant parish 
to the said pauper, whilst residing in another parish, as constituted an admission of 
bis being settled in the appellant parish ; but the Court of Quarter Sessions were of 
opinion that, on the whole, there was such evidence upon the facts as above stated ; 
and the question for the opinion of this Court was, whether there was evidence of 
such relief as amounted to an acknowledgment of a settlement by relief; if this 
Court should be of opinion that there was, then the order to be confirmed ; if other^ 
wise, the order to be quashed. 

Townsendf in support of the order of Sessions. — There are sufficient facts here to 
shew that the relief given to the pauper was not given as to casual poor ; but that it 
amounted to an acknowledgment of the pauper's settlement in the appellant parish. 
It is clear that this pauper did not receive relief as casual poor ; for he continued to 
receive it for a length of time, and after the parish officers of St. Giles had made 
inquiries as to his settlement. The inference is, that they were satisfied that he was 
settled in their parish ; the Court of Quarter Sessions has drawn that inference, and 
if there is any scintilla of evidence to support their decision, it is sufficient. In the 
case of Rex v. Edwinstotoe (8 B. & C. 671), where there was only one instance of 
relief out of the parish, followed by a refusal on a second application, this Court 
supported a finding by the Sessions that the pauper was settled in the relieving 
parish^ although all ttie judges would have arrived at a different conclusion. The 
cue of Rex v. Trowbridge (7 B. & C. 252^ is a strong authority for the same posi- 
tion. There the Court said most distinctly that it was for the Sessions to draw 
their own conclusion ; the Sessions have done so here ; and their conclusion i» 
warranted by the observations of Lord Ellenborough in Hex v. Chatham (8 East, 
498) : — *' TTie rule having been once laid down that the bare fact of giving relief to a 
pauper within the parish was no evidence of his settlement there, because it might 
be given to him as casual poor, it is proper to abide by it. If relief were offered ia 
this manner for any length of time, it might give occasion to different inferences, 
either that the party receiving was a settled inhabitant, or merely that his settle- 
nent could not be known." Although in that case it was laid down as the better 
rale to say that sudi relief did not amount to evidence of the settlement, yet as> 



8f lUfilSnUXE6^GiA8£8. 

i|.is a question p9X>perfor the SeMiens, aad-thej have- decided it» this Court wSl 
not interfere. But, further^ here was relief gi,Ten out of the parish. It is fooud 
that both Penry*s establishmeDt at Islington: and* the Sorrej Asylum axe looeUyi 
situate out of the parish; and. though certainly parishes may contract for the 
maintenanoe of their paupers in building out of the parish, and may, by oom* 
plying with certain . statutory requisites, entitle themselves to treat the buildings 
so contracted for as integral parts of the parish, defraying the charge of suck 
maintenance, yet here there is no evidence oi any such compliance. In the caae 
of Rexw. St. Peter*sand St. PauTs (2 Nolan, S79>, which was decided upon stat^ 
36 Geo. 3, c. 23^ Mr. Justice Buller expresses some doubt upon this point, even 
supposing the requisites of the statute complied with; but here there is a mere con* 
tffsct by the pariui officers with strangers for their own convenience, and no authority 
of any kind shewn fi>r treating these establishments at Islington and in Surrey aa 
p^urts of the parish of St. Giles. 

M* ChatMerif contri^ was not called upon. 

Lord Dsnman,C. J.— I think that the Sessions have very properly i>laoed before 
us this question, whether there is here any evidence at all to support their order^ and 
we are of opinion that, according to the cases decided on this subject, there is no 
evidence to warrant that order. This decision is in conformity with the current of 
authorities from Rex v. Chatham (8 East, 498), supported by Rex v. Coleorton (1 B. 
& AdoL 25), down to the present time. In the first case mentioned it was held, that 
the fact of a pauper having received relief within a parish, was not even primdjade 
evidence of a settlement there, since he might have been relieved as casual poor ; and 
what is the reason given ? Because the overseers are bound to afford such relief 
when it is wanted ; and if by giving it they were to make evidence against themselves 
aato the settlement of the pauper, they would perform their duty to the casual poor 
with great reluctance; and the paupers, for want of necessary relief, might be suf- 
fered to die. Now I think the relief given in this case is precisely the same aa 
relief given within the parish. The pauper is within the parish when he requires the 
relief, some relief (and the duration of it is immaterial) is given in the parish ; theo 
he is removed to a distance to have it continued; and the places to which he waa 
removed wercy I think, in fact parish houses, and therefore as to any acknowledgment 
of a settlement, it is Uie same thing as if they were in the parich. The order of 
Sessions must be quashed. 

Patteson, J. — In this case I am one of the appellants. 

Williams, J. concurred. 

WioHTMAv, J.^The case of Rex v. Coleorton (l'B.^& AdoL 25) is a decisiye 
authority against this order of Sessions. Order qfSeisknu qutuked. 



Q.B. Thursday,. April ZS. 
The Qu£kk v. Thb Justicss of thb parts op Kjestbven, Lxmcolnshirs. 

T%i» Court wiil not hoar a eooo gro/wtodky tko COwt of Qjumrt^r 8miom fipon the hearimf of 
an^gppeal agmnot 0» ordmr of removal, in thtfotiowing form i^ " Should the Court qf Quoon^e 
Bench be of qpmion that the grounde q/* appeal were inei^ieient^ the eaidorderqf Seetkme would 
eland confirmed ,' but ehould il decide thai the grounde were, efficient, and Ihal the alleged 
eetllement ehould have been entered upon^ then the appeal ehould be eent down to the Seeeione 
fotr a rehearing :** for iheeaeemuet raiee a gueetion that will be eonclueive qfthe appeal. 

The Court qf Quarter Seeeione ie the proper tribemal for deciding all gueeUone aa to the em0» 
ciency qf examinationa or grounde qf tgrpeali and bg their deeieion^ upon ang euch .gueetion tkie 
Court ie bound, unleet thagifrania cate, Thie Court will onlg interfere bg mandammey where 

■ the Seeeione have r^fueed to hear the appetd on a eirictlg prelimmarg point. The caeee qf 
Beg. V, The Jiisticeg of Carnarvonshire (2 Q3. 325) and Reg. v. The West Biding Justices 
(2 Q.B. 331) proceeded on a mieconception qf what wae a preUminarg point, and were errom 
neemelg decided 

V t^ Seeeione are indeiubi ae to ang gweetiom qf laWf and deeire the opinion qf thie Cemrt^ the. 
pfoper coureefor them to pureue ieto hear the evidence toanendy and decide the. appeal figpgm 
the wholefaete,.eulgeet to the qpinienqf. thie Court on the point eubmitted to i<. 

A^N wdee<drtmmHiir%momMig^Mim^ ftiK^ 

daab^children^fiem the townahipiof l^itilegate to the pfuiab^if Onat^Oatos^ holliisk 



EASTEA ;TBBM» 1644. r9 

the ftatM of Kfiflfven, in the county of Linodo, >wai fonnded on eztnrimitions which 
iMed that the Mid Wm. Welboum wis hound apprentice to one John Green, of 
Gnat Ponton aforeiaid, stonemason, hy an indenture bearing diMte the 24th day of 
Kafch, 1828, to serve him from the 15th day of September then last past, for the 
torm of six Tears; and that the said Wm. Welboum, the said apprentice, did so 
lerve the said John Green, in the said parish of Great Ponton, fbr the said term of 
ox years* and did reside therein fbr more than forty days of the said term, and did 
deep at his said master's, the said John Green's house, in the said parish of Great 
Fonton, on the last night of the said term. Against this order the churchwardens 
and overseers of the parish of Great Ponton gave notice of appeal, and stated as one 
of their grounds of appeal, '* That the said Wm. Welboum, after his service with his 
Buster^ the said John Ghreen, for part of the same term of the said apprenticeship, 
with the consent of his, the said Wm. Welbourn*8, said master, to wit, from May or 
Jime 1833 to the end of the said term, served one Samuel Newell, of Grosvenor 
Wharf, Pimlico, in the county of Middlesex, builder, under the said indenture, in the 
parish of Harlazton, in the said parts of Kesteven, in the said county of Lincoln, and 
inhabited and resided therein more than forty days during such service, being then 
single and unmarried, and without child or children." There were two other 
grounds of appeal, which slightly varied this statement as to matters not material to 
tfie decision in this case. The appeal came on to be heard at the General Quarter 
Sessions of the peace holden at Bourne, fbr the said parts of Kesteven, on the 16th 
of October last, when, after the respondents' case had been stated, the appellants 
admitted that there was a primdjade case of settlement in their parish, but stated 
that they should rely upon a subsequent settlement in the parish ot Harlaxton, as set 
forth in their grounds of appeal ; whereupon witnesses were called by the respond- 
ents to prove that the said Wm. Welboum had slept in his master's house in Great 
Ponton the last night of his said apprenticeship ; but in the course of their examina- 
tion certain questions put to them were objected to ; and then, by permission of the 
Court, the respondents in their tum took an objection to the grounds of appeal as fiir 
ss related to the alleged subsequent settlement intended to be set up in the parish of 
Harlaxton, contending that such grounds of appeal were one and all defective, and 
were totally insufficient to enable the appellants to give any evidence of such 
dleged subsequent settlement, inasmuch as they did not describe or set forth the 
situation of the house where the apprentice was supposed to have resided or slept in 
such parish during his service there, and did not give any information as to the name 
or description of the person with whom he lodged there, which was, in this case, the 
more necessary, in consequence of the alleged master (Mr. Newell, of Pimlico, in the 
county of Middlesex, builder), with whom he was stated to have served, residing at 
a distance of more than one hundred miles from such parish of Harlaxton, and having 
never had any residence whatever there ; besides, that he was employing at a large 
ball erecting in such parish, as admitted by the appellants' solicitor, more than two 
handred workmen from all parts of the country, some lodging in the parish, and some 
in one place and some in another, in the different villages around, and almost all of 
them totally unknown to their alleged employer ; and that the ground of appeal did 
not set forth the best evidence on such point in the appellants' power, or, indeed, 
iocfa clear and satisfactory information as would enable the respondents to ascertab 
whether the apprentice did actually inhabit and reside for forty days in the parish of 
Harlaxton dunng the poriod of his service. 

After hearing the advocates on both sides on the said objection, the Court of 
Qnarter Sessions decided that the grounds of appeal were insufficient and defective, 
and confirmed the order; but afterwards, on the application of the advocate fbr the 
aaid appellants, granted a case for the opinion of this Court as to the sufficiency of 
the said grounds of appeal, at the same dmestating, that should the Court of Queen's 
iBenchtbe of opinion that ^be grounds of appeal were insufficient, the said order of 
Bevions would stand confirmed; but should it decide that the grounds were suffi- 
cient, and that the alleged settlement an Harlaxton should have been entered upon, 
that then the q^ieal shouM be sent dewn :to the ^Sessions for a rehtaring. O^ 
aocoimty however, of the decision of this Court to entertab oidy those 



10 MAGISTRATES* CASES. 

which the opinion of the Court, when delivered, would be conclusive of the appeal, 
no case was, in this instance, drawn up in pursuance of the permission granted by the 
^Sessions ; but in last Trinity term, G, T, White, on behalf of the appellants, obtained 
'■a, rule calling on the justices in and for the parts of Kesteven, in the county of 
Lincoln, to shew cause why a mandamus should not issue commanding them to enter 
•continuances and hear the appeal, and the facts above stated appeared upon the affi- 
<davits for and against the rule. That rule having been enlarged to the present term^ 

Mellor now shewed cause.— ^The appellants elected at the Sessions to take a case ; 
they have not thought proper to bring that case up, and they are, therefore, not in a 
situation to apply for a mandamus. That is decided by Rex v. The Justices of the 
West Riding {Warmsworlh v. Doncaster) (1 Ad. & Ell. 606) ; Rex v. The Justices of 
SuffoUc (6 Ad. & Ell. 109), and Rex v. The Justices of NoHhamptonshire (6 Ad. & 
£11.111). 

fVhitehurst, contr^. — The case granted by the Sessions was not one which the 
Court would entertain. It did not present a point for the decision of this Court 
which would be conclusive of the appeal ; and the Court has already declared that it 
will not decide upon cases so framed. The cases of Reg. v. The Inhabitants of Worth, 
decided on the 25th of January, 1843, but only reported in the Justice of the Peace, 
vol. 7, p. 287 ; Reg. v. The Inhabitants of Ickham (Justice of the Peace, vol. 7, p. 
529), and Reg. v. The Inhabitants of Wistow (1 Gale & Dav. 681), are conclusive 
-authorities upon this point. Then, if the Sessions have granted a case in such a form 
that the Court will not hear it, the only remedy which the appellants have is by 
mafuiamus. 

Patteson J. — If you had objected to tlie form of the case, the Sessions would, 
DO doubt, have amended it. However, the proper course certainly is for the Sessions 
to hear the whole case, and decide it, subject to our opinion on any point concerning 
which they are in doubt. 

Lord Denman, C. J. — The practice has been objected to; but we have certainly 
lieard recent cases stated in similar terms. 

The Court then called upon Mellor to proceed to the other points in the case. 

Mellor, — The Sessions have heard the appeal; they have decided a question of law 
which was within their jurisdiction, and which related to the sufficiency of the 
^grounds of appeal. The appellants were heard upon all that they chose to bring for- 
ward, and the decision of the Court was, therefore, upon the settlement itself, and not 
«pon a mere preliminary point. The recent cases of Reg. v. The Inhabitants of 
EventDOod and Barony (3 Q. B. 370) ; Reg. v. The Inhabitants of Charlbury and 
Walcott (3 Q. B. 378, 3 Gale & Dav. 177) ; Reg. v. The Inhabitants of Kingsclere 
(3 Q. B. 388, 3 Gale & Dav. 186) ; and Ex parte The Overseers ofAckworth (3 Q. B. 
397), all go to that point The cases of Reg. v. The Justices of Carnarvonshire (2 Q. B. 
525, 1 Gale & Dav. 423), and Reg. v. The Justices of the West Riding (Keighley v. 
Wilsden) (2 Q. B. 331), will be relied upon on the other side : but in tlie former of 
those cases there is this peculiarity, that the information, upon the absence of which 
die Sessions had acted in refusing to hear evidence in support of the grounds of 
appeal, was information more within the power of the respondent than the appellant 
paribh ; and it is, at all events, sufficient to observe, that the cases above cited con- 
itain the more recent decisions of the Court. Then, if the Sessions have in fact heard 
the appeal, this Court will not interfere by mandamus, whether the decision of the 
.Sessions be right or wrong. {Rex v. Friesfon, 5 B. & Adol. 597 ; In the matter of 
Pratt, 7 Ad. & Ell. 27; Ex parte the Inhabiants of Broseley, 7 Ad. & Ell. 423 ; 
Re^. V. The Justices of the West Riding (Clinton v. Birstxvith), 10 Ad. & Ell. 685.) 

IVhiiehursty contr^ — The cases cited on the otlier side do not go the length con- 
tended for. It is admitted in all of them that this Court will interfere where the 
Sessions, on a preliminary objection, which it considers ill-founded, refuse to hear ; 
and it is submitted that the decision of the justices in this case was tantamount to a 
cefttsal to hear. At all events, Reg. v. The Justices of Carnarvonshire, and Reg. v. 
The Justices of the West Riding (Keighley v. Wilsden), are distinct authorities in sup- 

rrt of this application. Then the question is» are these grounds of appeal sufficient ? 
IB submitted that they are. 



EASTER TERM, 18U. 11 

Lord Denman, C. J— This case cannot be varied by any argument on that point ; 
it is unnecessary for us to consider whether the Sessions were right in holding the 
grounds of appeal in this case insufficient on the objection taken before them. It is, 
in tbe first place, satisfactory that it must now be taken to be universally known, that 
the Court of Queen's Bench will not decide upon a case steted in this conditional 
way, so as to make this Court merely the instrument for putting the inferior court 
in motion. Whenever a case is sent to this Court, it must contain some point upon 
which the final decision of the appeal will depend. For that purpose, the Quarter 
Seasions should hear and decide the case provisionally in the first instance, and then 
the unnecessary expense of a rehearing at the sessions is avoided. The matter which 
remains is not so satisfactory ; for, we think, we are bound to overrule some cases, 
in which we all seem to have concurred. It seems to us, upon consideration, that 
the case of Reg. v. The Justices of Camartonshire (at the decision of which I was 
not present) is wrong, and, if the expression is allowable, that Reg, v. The Justices of 
Me West Riding (Keighley v. Wilsden) (decided when I was present, and with my 
concurrence), is more wrong than the other. It is quite clear that in those cases 
this Court took upon itself to say, that the Sessions had gone wrong in not giving 
doe effect to the evidence ; so that in each of those cases there was, in effect, a new 
trial ; and that is quite beyond the authority of this Court. The language used in 
R^. V. The Justices of Carnarvonshire was misapplied ; there the matter on which 
the Sessions had decided was called a preliminary point ; but it clearly was not so. 
Tbe true distinction is this : if the Sessions, upon some supposed rule of practice 
which we consider improper, altogether refuse to hear an appeal, this Court is bound 
to set them right and to obtain a hearing for the parties by mandamus ; but if they 
«itertain the appeal at all, and decide upon any matter of fact, we are bound by their 
decision. Now this is a question of fact ; the question of the sufficiency of the grounds 
of appeal raises a question entirely for the consideration of the Sessions. They may 
be guided in their decision by a variety of circumstances of which we can know 
nothing, and of which they are the only competent judges. Having considered the 
two cases before mentioned, and being thoroughly convinced that we have been in 
error, I think it necessary that we should distinctly say so. 

Pattsson, J. — The Court of Quarter Sessions ought to have heard the evidence 
in this case to an end, decided upon the facts, and then granted a case for the opinion 
of this Court as to the sufficiency of the grounds of appeal. That is the course 
wjiich ought to have been adopted. The party who consented to take the case in this 
conditional form cannot complain ; he ought to have objected at the time to the form 
in which the Sessions proposed to grant it. As to the other point, I agree that the 
two cases mentioned were wrongly decided ; and it is much better that it should be 
fully understood that these questions as to the sufficiency of grounds of appeal are, in 
tbe opinion of this Court, peculiarly proper for the consideration of the Sessions. 

Williams, J. — The case of Reg. v. The Justices of Carnarvonshire rests entirely 
upon a misconception of what is a preliminary point. Upon consideration, I think 
it impossible to say that the appeal in that case was not heard by the Sessions. So 
here there was unquestionably a hearing and a decision by the Sessions ; and we 
cannot interfere by mandamus, 

WiOHTMAN, J. concurring. Rule discharged, 

Whitehurst, — I hope your lordships will say that the appellants may bring up the case. 

Lord Dbnman, C.J. — We cannot allow that now. 



M MAGISTRATES* ^GASES. 



^ Q.B, Friday, April US. 
Thb Quxbn v. Th£ Inhabitakts or Cattbrall. 

(jim order qf removal wa9 made on two ejeaminatione, qf which one etafedihai WUjMiqMrMMe 
to live with the father, of the witneu ae a farm^eervant s thai ** he wae not engaged for mug 
particular time," hut that the father qf the witneee ** found him board, waehing, lodging^ Wkd 
clothes for to long a time ae he stayed;*' that the pauper continued m the service upwards qf 
three yetsrs and a half during which tkne he slept at the farm, and was a bachelor: andtis 
other, that of the pauper, repeating the same particulars, used the words, " there wets «» 
agreement as to the length of my service, but I was found with board, lodging, clothing, and 
washing whilst I stayed,** Held, that this was not a sufficient statement qf a hiring for q. pear 
to let in evidence qf a settlement by hiring and service in the appellant parish. 

Semble, that, to shew a settlement by hiring and service under 3^4 Wm. and Mary, e. 11» «.'7» 
it is enough to state that the pauper at the time qfthe hiring was a bachelor, 

,Qu0are, whether it is afktal objection to an order of removal that the complaint qf chargeaHlity km, 
in fact, been made by the assistant^overseer of a parish, instead of the churchwardens or o o e rse SM f 
although the order itself may recite a complaint by the churchwardens and overseers. 

^^^N the removal of Wm. Nuttall and Mary Ann, his child, from the parish of Cat- 
A^ terall to the parish of Dutton, both in the county of Lancaster, the churchwardeBg 
and overseers of the latter parish appealed, and upon the hearing of that appeal at 
the Quarter Sessions, holden by adjournment at Preston, in and for the nald coun^, 
that Court set aside the order of removal for defect in the examinations, subject to 
•the opinion of the Court on a case, which, so fSEu: as is material to the decision^ was :aa 
follows : — 

The information and examinations on which the said order of removal was grounded 
were respectively as follows. The information :•— 

** Lancashire, "i *' The information and complaint of Richard Baby, the assistant* 
to wit. / overseer of the poor of the township of Catterall, in the said coun^, 
taken upon oath before us, two, ' ^c.; then proceeding in the ordinary form. 

The examinations i — 
** Lancashire, 1 '* William Bourn saith : < I am a farmer in the township of Dil- 
to wit. J worth, in this county, and reside at a farm called Writtenstone. :I 
-was married in December, 1833. I lived at home with my father about a year and a 
half after my marriage, when I went to live at the farm I now reside at My father's 
name is also William Bourn, and he lives at a farm in Button, in this county, called 
Gudgeons, which he has lived upon for upwards of thirty years. Better than two 
years before I was married, the pauper, William Nuttall, came to live with my fiitoer 
as a &rm-servant ; he toasnot engaged for any particular time^ but my fodker found 
him boardf toashingf lodging, anacMkesfor so tonga time as he stayed; the pauper, 
William Nuttall, continued in my ftther's service in that manner, without leaving, 
from the two years before I was married, until after I left home to Hve at Written* 
atone farm ; ouring all which time he lived and slept on mj father's farm in Dutton, 
and during all which time he was a bachelor. There never was any other agreement 
come to whilst I lived at home, but my father found the papper, William Nutta]], 
'With board, washing, clothing, and lodging during the said service.' 

" The pauper, William Nuttoll, saith : * Better than two years before the witness, 
William Bourn, was married, I went to his father's, William Bourn, of Dutton, 
fitfmer, as a farmniervant. There was no agreement as to the length of mv service ; 
but I was found with board, lodging, clothing, and washing whilst I stayed. I con- 
tinued in this service from the commencement of the time I went until the witness, 
William Bourn, left home to live at Writtenstone farm, being altogether upwards of 
three years and a half; during all which time my said master, William Bourn (the 
fiither), found me board, lodging, clothing, and washing ; and I slept at his farm, 
and was a bachelor, during such my servitude. The farm was in the township of 
Dutton, in this county, and was called Gudgeons. I was lawfully married, about 
e^hteen months ago, to Betsy, my late wife, and I have one child, our lawful issue, 
yiz. Mary Ann, aged about fifteen months. I have resided in Catterall tovmship, in 
this county, with my fomily^ for about twelve months past; my late wife died in that 
township about five months ago; myself and child have resided there smce, and are 



E&8fSR TEBMy 1911. IS^ 

nS dwvUiiig'ihinne. Hayiog'btoi in<anm state of health for some time patt, and' 
being atill very w«aklj, myself aadcfaild hare been and are noir chargeable to the' 
Mid township of Catterall.' " (a) 

The following were the grennds of appeal-: First, that the order aforesaid is void, 
nd w«s made without any complaint of or by the parties who by law are authorized 
•ad l ea uk e d to mdce soai coraplamt; second, that the examinations on which the 
■M oraer of removal was made were not and are not in law su£Scient to justify the 
osidiig of the said order ; third, that the examinations are bad upon the face of 
theoiy and do not state the necessary facts, from which it can, or may, or ou^ht to be 
isqplied, that the said Wm. Nuttall did gain a settlement by hiring and service, as in 
tke Mrid examinations pretended ; fourth, that the examinations do not state, or 
lofficiently shew, that at the time of the alleged hiring and service the said WilHam 
Nnttidl was an unmarried person, not having child or children, as by law required; 
fifth, that there is not^ in fact, any such hiring and service as in the examinations 
pfeCended; sixth, that the order and examinations aforesaid are, and each of them 
1% ocherwise deftctive and informal. 

The appeal oame OB to be heard at Preston, on Wednesday, the 18th October, 
IMS, when the respondents offered to produce evidence in support of the order ; but 
tte appdiants objected that the complaint and examinations, or one of them, were or 
was Jnanffcient ; so that the order was incapable of being supported by any evidence, 
Ike Seaaions, after argument, and without hearing the evidence offered, set aside the 
order ef removal, for the insufficiency of the examinations, and subject to the opinioii' 
of this Court as to the sufficiency of the complaint and examinations as above set 
forth. If tins Court should be of opinion that the objections taken by the grounds of 
apped, or any or eiUier of them, ought to have prevailed, then the order of Sessions, 
aecting'aside the order of removal, to be confinned ; if, on the other hand, this Court 
shoidd be of opinion that none of those objections ou^t to have prevailed, then the- 
order of Sessions is to be quashed, and the order of removal confirmed. 

Whi^ham, in support of the order of Sessions.— First, there is here no sufficient 
compbmt; the complaint served with the order on the appellant parish was made by 
the aaaistantoverseer of the respondent parish ; but it ought to have been nmde by 
the dnirdiwardens and overseers. The law -does not recognize the situation of 
assistant-overseer (BenneU v. Edwardt, 7 B. & C. 586, S. C. in Error, 8 B. & C. 
7M, f^ Bing. 280); and the respondents, therefore, should have given -evidence to 
shear that it was the duty of Rigby to make the complamt; no such evidence wae* 
tiven, and without it the assistant-overseer is a mere stranger for this purpose. He 
V an officer elected by the inhabitants of the parish, in vestry assembled, under the 
proviaions of 69 Geo. 3, c 12, s. 7, and the duties of his office are determined and 
ipedfied by them at the time of his election. The Court cannot presume that the 
aadoDgvof this (x>mplaint waa-one of the duties so determined and spedfied* 

Cowmgt contri, was then called upon.^^We ofcied evidence at the Sessions, and 
Aeeffiwt 6i BenneU v. Edwards^ cited on the other side, is to shew that the ques«- 
tioo vma entirely one of evidence* 

LoED Dbvm AN, C. J. — The Sessions have said that no evidence could set it right. 

Wh^^aim. — The evidence tendered was as to the settlement itself. 

Lord DxNirAir, C. J. — That is not stated in the case. 

ComUmg^ — Our evidence, if received, might have shewn that the assistant-overseer 
waa entlidriaed to make this comolaint. It would lead to the greatest practical 
inoomrenience, if the Court should hold that a duty of thb sort cannot be dis- 
c har ge d by^ the assistant-overseer, but that the overseers must attend personally. 
However, it is submitted that the form of thn compUdnt is immaterial ; it 
b a; mere memorandum, which it was not necessary to send to the ap- 
p^ant .parish at all ; and if no copy of it had been sent, this ouestion could 
not hiive arisen, ibr the order recites a complaint by the churchwardens and over- 
There must be a complaint to give thfe . migistnites jurisdiction, and thb. 
■^■■ "* a. proper one, and 'that b aUthat b necessary. It b clear that the 

M Seb as to this itateaflDt, Ae^. t. High Bidtlngiim, ante, p. 1. 



li BIAGI8TRATE8* GASES. 

magistrates and their derk assumed that the complaint was that of the orerseers and 
churchwardens, though the assistant-overseer might attend to make it; and that 
assumption was correct. 

The Court then called upon Whigham to argue the other points. 

Whigham, — First, then, there is no evidence of any hiring at all; it is the case of 
a person living with another, and receiving board and lodging for the service he ren- 
ders during the time he chooses to stay. Secondly, there is no evidence that the 
pauper was an unmarried person, without child or children at the time of entering 
into the contract, supposing there to be any, which, however, is denied. 
. Patteson, J. — ^What is the meaning of the word ** bachelor?" 

Whigham, — I apprehend that any person free to contract marriage would answer 
that description. 
. Patteson, J. — Surely a widower is not a bachelor. 

Lord Denman, C* J. — You had better address yourself to the other point. 

Whigham, — The other point is quite clear. The evidence is, that the pauper was- 
not engaged for any particular time, but was found in board and lodging <* so long a. 
time as he stayed." This is like the case of Rex v. Christ's Parishy York (3 B. & 
C. 459 ; 5 D. & R. 314), where a boy at the age often went to a person to do what 
he could, and what he should be ordered, as long as he had a mind to stop for his 
meat and clothes only ; and though he remained above two years, it was held that as 
he might have quitted at any moment, the presumption of a hiring for a year was 
rebutted, and he gained no settlement. That is a decisive authority for the present 
case. 

Lord Denman, C. J. — Mr. Cowling, can you find out any hiring here ? 

Coxding, — The words of the examinations are, that *' the pauper was not engaged 
for any particular time ; " that means only that he was engaged for no particular 
time, and that is a general indefinite hiring, and will be presumed to be a hiring for a 
year unless there are circumstances to rebut that presumption. The case of Rex v.. 
Wincanston (Burr. Sess. Cas. 299) comes nearer to this than any other, and is an 
authority for the respondents. There a young man hired with a farmer to serve him. 
in husbandry for his board, lodging, washing, and clothes, but no particular time was 
agreed upon ; he served for two years and a half, and the Court held this to be a 
hiring for a year. The two cases are in all material respects the same. 

Lord Denman, C. J. — ^We can find no hiring at all here. The order of Sessions 
must, therefore, be confirmed. Order of Sessions confirmed. 



Q.B. Monday^ April 9Q. 

In the Matter ov James Walker, William Bird, Joseph Richards, and^ 

John Bird, Prisoners. 

Jn annptr to a writ of habeat corpus obtained on behalf of several prisoners^ the gaoler returned 
two warrants for the commitment of each, the later warrant being an amendment of the earlier 
one, which was defective, and the return expressly stating that in each case the two war- 
ranis applied to the same prisoner. Held, that the second warrants being good, there was a 
sufficient cause shewn for the detention (jf the prisoners, and that they must be remanded oe- 
eordingly, 

JAMES WALKER, William Bird, Joseph Richards, and John Bird, being pri- 
soners in the House of Correction at Leicester, in the county of Leicester, 
obtained a writ of habeas corpus to bring up the bodies, with causes, &c., to which 
writ the gaoler made the following return : — 

'' Leicestershire, 1 " I, John Allen, the keeper of the House of Correction at 
to wit. J Leicester, in the county of Leicester, in the writ to this schedule 

hereunto annexed named, do certify and return to our Sovereign Lady the Queen, 
that before the coming to me of the said writ, that is to say, on the 8th day of Aprils 
A.D. 1844, James Walker and William Bird, in the same writ also named, were 
severally committed to my custody by virtue of a certain warrant of commitment*- 
the tenor of which is as follows : - ' Leicestershire^ to wit — ^To the constable of 



EASTER TERM, 1844 15 

WorthiDgtooy in tbe laid county, and to the keeper of the House of Correction at 
Leicester, in the said county : Whereas information and complaint hath been made 
before me, William Wootton Abney, esq., one of her Majesty's justices of the peace 
10 and for the said county, by Benjamin Walker, of Worthington, in the said county, 
ooal-master, upon the oath of the said Benjamin Walker, against James Walker and 
Uniliam Bird, late of Worthington, aforesaid, in the said county, colliers to the said 
Benjamin Walker, at his Smoile Colliery, that they, the said James Walker and 
William Bird, have, in their said service, severally been guilty of a certain miscon* 
duct, nusdemeanor, miscarriage, and ill-behaviour towards him, the said Benjamin 
Walker, in that they, the said James Walker an4 William Bird, having severally 
entered into their said service, have severally therein not fulfilled their contract by 
having, at the township of Worthington, in the said county, on the 4th day of April 
inst., severally neglected their work in such service, contrary to the statute : And 
whereas, in pursuance of the statute in that case made and provided, I have 
duly examined the proofs and allegations of both the said parties touching 
the matter of the said complaint, and upon due consideration had thereof, have 
adjudged and determined that they, the said James Walker and William Bird, have, 
in their said service, severally been guilty of a certain misconduct, misdemeanor, 
miscarriage, and ill-behaviour towards the said Benjamin Walker, in that they, the 
said James Walker and William Bird, having severally entered into their said service, 
have severally therein not fulfilled their said contract, by having, at the township of 
Worthington, in the said county, on the 4th day of April instant, severally neglected 
their work in such service, contrary to the statute ; and I do therefore convict them, 
the said James Walker and Wm. Bird, of the said ofience, in pursuance of the statute 
in that case made and provided. These are, therefore, to command you, the said 
constable, forthwith to convey the said J. Walker and W. Bird to the said house of 
correction at Leicester aforesaid, and to deliver them to the keeper thereof, together 
with this warrant. And I do hereby command you, the said keeper, to receive the 
said J. Walker and W. Bird into your custody, in the said house of correction, there 
severally to remain and severally to be kept to hard labour for the space of three 
months from the date hereof; and for your so doing this shall be your sufficient 
warrant. Given under my hand and seal the 8th day of April, A.D. 1844. 

" * William Wootton Abney.' " (L.S.) 

[Here follows another warrant, in exactly the same form, and by the same justice, 
&r the commitment of one Joseph Richards and one John Bird. The return then 
proceeds] : — 

'* That afterwards, and whilst the said James Walker, William Bird, Joseph 
Richards, and John Bird, were respectively so in custody, that is to say, on the 15th 
day of April, A.D. 1844, the said Wm. Wootton Abney caused to be delivered to me 
I certain other warrant of commitment, the tenor of which is as follows : — 
'' < Leicestershire, 1 '< ' To all and every the constables and other officers of the 
to wit. J peace for the said county whom these may concern, and to the 

keeper of the House of Correction at Leicester, in the said county. These are in 
her Majesty's name to command you, and every of you, the said officers, forthwith 
lafely to convey and deliver into the custody of the said keeper the body of James 
Walker, late of Worthington, in the said county, collier ; being convicted before 
me, William Wootton Abney, esq., one of her Majesty's justices of the peace in 
and for the said county, upon the evidence, on oath, of B. Walker, of Coleorton, 
in the said county, for that he, the said James Walker, did contract with the said 
B. Walker, to serve him, in the capacity of a collier, for an indefinite period, deter- 
minable, nevertlieless, on either of the said contracting parties giving to the other 
fourteen days' previous notice of his mtention to determine the said contract ; and 
that the said James Walker did enter the service of the said B. Walker, and did 
continue to serve him, the said B. Walker, and to be employed by him, as a collier, 
nnder and according to the said contract, at the township of Worthington, in the 
saui county of Leicester, so being then and there in the service of him, the said B. 
Walker, as a collier, until the 4th day of April instant, and the term of the said 
cfrntract bebg then subsisting and incompletCi he, the said J. Walker, did miscon- 



li£ lUABXBAffBB' ' OilML 

dnct«aAiBudeiiieaB himBeirfai hb» said Mrvioe^ to mk, did''«t^e<t«hif worh? aad 
refuse to go to it on betn^requestedbyithe said Bl Walker so t^do, wherel^ divers 
other peraoni emplojed m the said pit were prevented firom prooeeditag wiUi thmr* 
ordbory employment, and the siud Bw Wdker* sustained g^t damage and losSf 
contrary to the form of the statute in such case made and provided ; for whioh said 
offimce I> the sud justice^ have oidered und adjudged Um said James Walker to be 
inmrisoned in the said house of correetion at lietcester,' in and for the said county, 
and there kept to hard labour for Ute- space of three months; and you, the said 
keeper, are hereby required to receive the said James^Walker into your said prisoni 
and' him safely there to keep for the afinvsaid term of three months, and during that 
time to be kept to hard labour; and for your so doing this shall be to you and every 
of you a sufficient warrant Given uncbr my hand and seali at^ Swepstone, in tlie 
sttd county of Leicestery this 8th day of April, AD. 184lv 

♦** WILLIAM' WOOTTOK AbWBY.' ^ (I-S.) 

(Thiee odier warrants, for the committal respectively of William Bird, Joseph 
Bidhards, and John Bird, are thenaet out in ^e same terms (mutaiii mutandis) as 
the above second warrant for the commitment of James Walker; and the return 
then: concludes] :-^ 

<*And that the said James Walker, in- the said first warrant mentioned, is the 
same James Walker as in the said thnd warrant mentioned ; and the said William 
Bird,* in' the said first warrant mentioned, is the same William Bird as in the said 
fourtii warrant mentioned) and that the said Joseph Richardsy in the said second 
wairant mentioned, is the same Joseph Ridbards as in the fifth warrant mentioned ; 
and the said John Bird, in the said second warrant mentboed, is the same John Bird 
as in the said sixth warrant mentioned ; and these are the causes of detaining the said 
James Walker, William Bird, Joseph Richards, and* John Bird, whose bodies I 
have here ready ashy the said writ t am commanded. 

" Theanswerof' 

'* JOSN AXLBK^ 

** Keeper of the House of Correction;" 

Bodkbh FtVy and HuddUttone now moved to discharge the prisoners. — ^The return 
shews no sufficient cause for the detention of the prisoners. The second warrants 
merely recite a conviction ( and it may be admitted, that if they had been returned 
ahnie^:they could not have 'been impeached ; but upon the present return, it must be 
ia&rred that the only -convictbn ivhUsh^ has taken place is that which is contained in 
the first warrants, and that conviction is bad. Re Elmv Sf Satnyer (1 Ad. & £11* 848). 
u^an:authority to shew that the Gourt^wili look 'Striotfy to this substitution of gpod 
warrants for bad. 

[Tbesame objectioas were taken to the earlier warrants in this case as to the 
warrant in thecase of R$T(wdoft and (Mers^ reported poilf p. 17.] 

WhUekurdi contrib — This ' objection cannot be supported. All that the Court is 
bound to do is to see that Uie gaohNrhas a good-cause for the detention of the pri- 
soners. Here it is admitted that the later warrants afford sudi cause; but then it is 
saki that the Court must infer firom the former-warrants that the conviction on. whidi 
these warrants proceeded was bad ; but Nereis noaothorityfor such a course. The 
Court-knows nothing of the conviction exeept what anpeers upon the warrant, and the 
redtal of theconviotion isclearhrsufficient' Admittii^ that theearl^ warrants state 
afoad*convictk>n, it does not foUbw that liiere may not have been another good con- 
vfcition on whfeh thelalter warrant was founded.* 

FbT'CuntAM. — It appears to us that- the- return to this writ shews a valid ground' 
for the detention of tmse prisoners^ There is nothing whidi so necessarily connects • 
thO'two sets of nwvants that"weniu8^infin^that the one-is founded on .the other and' 
o» nothing else. The latter warranto are valid ; they sufficiently recite a good con^ 
viotibn, and we^cannot infer tbie contrary; litMs caserthereforei the prisoners must' 
befremandedonto th^ custody*fhim wUob they*h«ve teeniirooght^' 

TM^vrmenets ftnutntbdm 



BA8TBR TEBM, 1814 ilT 

Q.B. Tuesday J April SO. 

In TH& Matter ov Isaac ToRDorT> Martin FisHiRy JoHir Hrrbrrt» 
Charles QRxxKy and John Prixstlt. 

A — J— # qf cammUwtmi, eomiaminff a emwicihn wuter 4 Qio. 4, e. M {the Matters 4md ServanU 
Ad), mmt Hate, either in exprete terme or hy reammable intendment, that the evidence upon 
which it proceeded woe taken m the preeenee of the prisoner ; and the following statement does 
mot sufficiently shew that fact : ** And whereas the said /. T., in pursuance of my warrant for 
that purpose, hath this day egppeared Ufore me to answer the said complaint, but hath not 
prooed that he is not guilty qf the said complaint and charge; and whereas, in pursuance of the 
stattdea, h^., I have duly ejeamined the proofs and allegations upon oath of both the said parties,** 
J%e warrant went on to recite an at^udicatien, that the complaint was true, SfC. and proceeded-^ 
" And I do therefore convict the said L T.qfthe said qffence.** Held, that this was, and was 
to he treated as, a conviction, and not a mere warrant of commitment. 

ON return to a writ of habeas corpus, obtained on the part of Isaac Tordoft, Martin 
Fisher, John Herbert, Charles Green, and John Priestly, prisoners in the 
House of Correction at Wakefield, in the West Riding of the county of York, the 
following warrant was certified into this court by the goTemor -.— - 

'< West Riding of Yorkshire. — To George Kershaw, the constable of Bamsley, in 
the West Riding of the county of York, and to the keeper of the House of Correction 
at Wakefield, in the said West Riding of the county or York. 

** Whereas information and complaint hath been made before me, William Bennet 
Martin, esq., one of her Majest/s justices of the peace in and for the West Riding 
of the county of York, by Andrew Faidds, of Wonbrough, in the said West Ridiitf, 
oolfienr proprietor, upon the oath of the said Andrew Faulds, against Isaac Tordon, 
Jtte or Stainbrough, in the said West Riding, collier, for that he, the said Isaac 
Tordoft, having contracted with the said Andrew Faulds and others, his partners ia 
trade, as collienr proprietors, to wit, on the 1st day of January, A.D. 1&4<2, in the 
West Riding aK>resaid, to serve them, the said Andrew Faulds and others, in the 
capacity and employment of a collier in the said West Riding, from thence until the 
end of one month mer he should have given to or received from his said master 
notice to quit and leave his said master's service, and that the said Isaac Tordoft, in 
porsiiance of the said contract, entered into the service of the said Andrew Faulds 
and others accordingly, and that afterwards he did unlawfully absent himself firom his 
said service without his said master's consent, in the riding fubresaid, to wit, on the 
SSrd, 84th, 26th, and 27th days of February last past respectively, before the time 
cf his said contract was completed, to wit^ after the commencement of the said 
eontracty and before the end of one month after he had given to or received from hia 
sud master notice to ouit and leave his said master's service, and hath from^ thence 
Jdtherto neglected to fulfil his said contract, a^inst the form of the statutes in such 
case made and provided ; and whereas the said Isaac Tordoft, in pursuance of osiy 
vanant for that purpose, hath this day apffeared be/ore me to answer the said earn- 
flmi, iaU hath not froned that he is not guilty of toe said complaint and charge; and 
ttkereas, in pursuance of the statutes in that case made and provided, I have duly 
essmmned the proqft and aUegaHons^ upon oath of hath the said parlies, touching 
AemtaUer of the scad complaint, and upon due consideration had thereof, have adjudged 
and determined the said complaint to be true, and that he, the said tsaac Tordoft, did 
coatnct with the said A. Faulds and others as aforesaid, in the riding aforesaid, and did 
afterwards absent himself from the said service before the time of his said contract was 
completed as aforesaid^ to wit, on the several days aforeuid in thcf year aforesaid ; and 
I do therefore convict him, the aaid Isaac Tordoft, of the said oflPence, in pursuance of 
•die statutes in that case nlade^and'p^ovided• These are therefore to command you» 
tlie said G. K.> forthwith to convey the aaid I. T. to the House of Correction at W. 
a f o i eea i d^and to deliver him to the keeper thereof, together with this warrant ; and I 
dohere^^ command vou^ the said keeper, to receive the said L T. mto your costo^ 
in the said. House of Correction, there to remain and be held in hard labour for the 
space of threecalendar. months firom the date hereof, and foi[ your so doing this shall 
¥b your sufficient wanrant. . And whereas Jt has appeared to me, .upon th^: proofs and 
♦iHnatfOBs of both iha sai4 partiesiupon oath aaanirtsaid^ thatno wfges are mw.w 



18 MAGISTRATES' CASES. 

will hereafter become due to the said L T. from the said A. F. and others during the 
period that the said I. T. will be in the said House of Correction as aforesaid, I have 
adjudged and determined that no wages are now or will hereafter become due to the 
said L T. from the said A. F. and others during the said period the said I. T. will be 
confined in the said House of Correction as aforesaid ; and I have not made, and I 
do not make, any order to abate a proportionable part of his wages for and during 
such period as he shall be confined in the House of Correction as aforesaid. 

'< Uiven under my hand and seal, at the Court-house in Barnsley, in the said West 
Riding of the county of York, the 6th day of March, A.D. 1844. 

" Wm. Bennkt Martin." ^L.S.) 

The warrants under which the other prisoners were in custody were in the same 
form, and, mutatis mutandis, in the very same words. Upon the affidavits it appeared 
that oneof these prisoners was brought up by habeas corpus on the 20th day of March 
last, before Mr. Justice Coleridge at Shrewsbury, who then decided in favour of the 
legal validity of the warrant under which he was committed, and remanded him back 
into custody. 

Bodkin (with whom were Fry and Huddlestone) on a previous day moved to 
discharge the prisoner out of custody. — The warrant is bad on the face of it. It 
does not appear that the prisoner was present during the examination of the witnesses 
and the hearing of the evidence against him before the magistrate. It only states 
that on a certain day he appeared, and did not prove that he was not guilty ; and 
then, af^er reciting simply that the magistrate nad duly examined, &c., proceeds to 
the adjudication and conviction. That is not enough. In Rex v. Vipont (2 Burr. 
1163), Lord Mansfield said — *<The evidence ought to be taken over again in the 
defendant's presence, unless he confesses ;" and he distinguishes that case from Rex 
V. Baker (2 Strange, 1240), on the ground that the Court there went on the supposi- 
tion that the defendant was present. The other judges concurred with Lord Mans- 
£e]d that the evidence must be given in the defendant's presence ; and the conviction 
was quashed on that ground. Rex v. Croxother (1 T. R. 125) is a distinct authority 
to the same effect. Admitting that, if it could be presumed from the facts stated 
that the evidence was in fact given in the prisoner's presence, that would be sufficient 
to support the conviction, yet no such presumption can be raised here; and even ii 
it could, the Court will require the statement to be expressly made, since the passing 
of the 3rd Geo. 4, c. 23; which statute prescribes a general form of conviction, and in 
that form directs a statement of the presence of the prisoner to be made wherever he 
was in fact present. This is a conviction ; it contains all the words essential to give il 
that character ; but if it were a mere warrant of commitment, it ought to shew a good 
conviction. (Re Peerless, IQ.B. 143.) InRexv. The Justices of Sti^rdshire (12 East 
572V decided under 6 beo. 3, c. 25 (a former Master and Servants Act), the Courl 
held that there was no distinction between an order of commitment containing a con- 
viction, and a conviction under that Act. In Reg. v. Chanet/ (6 Dowl. 281), Patteson, J. 
aaid---<< The warrant must be taken as setting out all matters as they are recited in the 
conviction. The conviction as here recited is bad. The warrant of commitment 
founded upon it, must be considered as bad also." It is, at all events, abundantl} 
clear that the warrant must shew the jurisdiction of the magistrates. {Reg. v 
Cavanagh, I Dowl. N. S. 546 ; R. v. Brown^ 8 T. R. 86 ; Reg. v. King, 13 Lan 
Journal, M.C. N.S. 43; Johnson v. Reid, 6 Mee. & W. 124; Ex parte Johnson^ 'i 
Dowl. 702.) 

The Court, without hearing Fry or Huddlestone, then called upon the other side 

Erie, Q.C., Yardley, and Overend, in support of the warrant.— This objectior 
' cannot be maintained. The question is, whether sufficient appears upon the face ol 
the warrant to enable the Court to arrive at the conclusion that the prisoner wai 
present when the evidence was taken. That is decided by Rex v. Baker, which ii 
the first case upon this point, and has never been overruled. In the cases cited oc 
the other side, the Court held that there was not enough to raise the presumption 
Md therefore quashed the convictions ; but they are decided upon the same prin< 
ciple as Rex v. Baker. The current of authorities establishes this rule, that whei 
^9 whde proceedings appear to have taken place in' one day, even though not at 



EASTER TERM, 18Ub 19 

the tame place* it will be presumed that the evidence was given in the prisoner's 
presence, unless there be something to rebut it. (Paley on Convictions, p. 143 ei 
uq. ed. 1838, where all the authorities are collected.) Now there is but one day 
mentioned from the beginning to the end of this warrant ; and nothing whatever to 
rebut the presumption contended for. Then the stat. 3 Geo. 4, c. 23, makes no 
difference. It prescribes a form certainly, but it leaves it to the justices to draw up 
their conviction either in that form, " or in any words to the same effect." The 
words used in this warrant are, according to the above dedsions, words to the same 
efllect. At all events, this is an objection as to a matter of form only ; it does not 
go to the jurisdiction of the magistrate; and this being a warrant of commitment, 
and not a conviction, great precision is not necessary. (Paley on Convictions, p. 236, 
ed. 1838, and cases there cited.) Cur. adv. vult. 

Lord Denman, C. J. now delivered the judgment of the Court. — We think that 
the warrant in this case is bad upon the last objection taken to it. It has been 
properly contended, that unless, upon the face of it, it appears that the evidence was 
taken in the presence of the prisoner, it cannot be supported ; and, indeed, that was 
not disputed, for it was said that the evidence had in fact been so taken, and that 
that fact sufficiently appeared upon the face of the warrant. Now certainly this 
warrant nowhere states in terms that the witnesses were examined in the pre- 
sence of the prisoner ; and it is to be observed that the most general form of convic- 
tion given by any statute contains an allegation of that fact ; and that no conviction 
has ever been upheld in which that statement, either in express terms or in equiva- 
lent language, has not been found. Reference has been made to the cases of Fipont 
and Baker; there is always great inconvenience in departing from a general rule, 
aod those cases afford an instance of it. In consequence of those decisions, judges 
have been obliged to examine the words of each particular commitment for the 
purpose of ascertaining whether any reasonable inference in favour of the presence of 
the prisoner could be drawn from them ; but, notwithstanding that inconvenience, 
we feel ourselves bound to abide by the authority of those cases, and we must, there- 
fore, look to the form of commitment, to see whether, by reasonable intendment, the 
defendant appears to have been present during the examination of the witnesses. We 
are of opinion that it does not so appear ; the statement is, that on a certain day the 
prisoner appeared, and was called upon to prove that he was not guilty, which he 
lailed in doing ; then follows, in a separate clause, the recital of " a due examination 
of the proofs and allegations upon oath of both the said parties," &c. ; and it seems 
to us almost impossible not to conclude from that language, that no vivd voce ex- 
amination of witnesses against the prisoner took place in his presence. It has been 
sigaed that this is a mere warrant of commitment, which would be good if founded 
on a good conviction ; and that a good conviction must be presumed ; but we cannot 
yield to that argument. The answer is, that this is a conviction, for all the neces- 
sary words to constitute a conviction appear. It must be understood that we give 
no judgment whatever upon the other objections raised before us; (a) but upon this 
we think the prisoners entitled to be discharged. 

(«) The following objections were also taken to certain, as it recited four seTeral offences committed 

$Mm warrant, bat the argnment upon them is not on four different days, and only convicted the 

reported, as the judgment proceeded entirely upon prisoner of one of them, without shewing which. 

* : ground :~l8t, That the words, ** justice of 5th, That the a4}udication stated no entry into the 



Iha peace in and for the West Riding,** &c. were service, although that was part of the complaint. 

not solBcient to shew the iarisdiction. 2nd, That Upon these points the following cases were cited in 

ft was defective, in not setting out the names of the addition to those mentioned in the Report : Re9 

«ther parties, besides Andrew Faulds, with whom v. Dobbjfn (SaUc. 474) ; Reg y. SaUmoia (1 T. R. 

tke prisoner contracted. 3rd, That no valid con- 949). 
tract was sufficiently stated. 4th, That it was un- 



HAGISTKATES* CASES. 



Q.B. - W^dnndayy Mey 1. 
Th« Quebk v. "Tbs Ikhabxtants of Wiogshhall St. Gsrmaini. 

Wkert e<mmn9»i9mr9 tmier^a local Act mate a road within a reatoiutble distance qf a river» 
along the book qf wkich it if to run, thu parishes in which it lies are not exempted from 
repairing it, because it demates from the exact line directed, the termini being the same: and 
whether it follow ihe line or not, where the road is completed, and has been dedicated io^wkd 
used by the public, they are emnpettable to repair it, 

INDICTMENT against the inhabitants of the parish of Wiggenhall St. Gennalns, 
for not repairing a highway, situate in Bedfbni Level, in the county of Norfolk. 
On the trial, at the last Summer Assizes, at Norwich, the verdict was found for the 
Crown, subject to a special case, by which the following fkcts appeared : — 

The road is part of a Hne of road originially formed by certain commissioners for 
drainage, acting in the execution of certain local Acts of Parliament (35 Geo. 3, c^ 77, 
and 59 Geo. 3, c 38), by which it is enacted that there be made '< a road from the 
south-west end of the upper danrover the present channel or river Ouze, alon^ the 
west side of the present river-bank to the road which leads from a house caHed 
'Bentley's, and from thence to the said turnpike-road leading from Lynn to^^^Hs- 
beach." It was further provided that this road should be deemed a public highway. 
In 1822, the commissioners, intending to act in pursuance of the provisions of the 
Acts, formed and made ai line of road which runs partly through the said parish. It 
did not exceed the breadth of thirty feet, and commenced at the south-west end of 
the said dam ; '* but it xoas not formed along the toest side of the river-bank, to the said 
road leading to a house called Bentlei/s, and from thence to the said turnpike'* (as di- 
rected by the Acts): nor had any such line of road been set out; but the said Hne 
was made by the commissioners in a straight Knejrom the south-west end of the taid 
dam to the said turnpike, in such a direction that it was in one part eiglity-eieht yards, 
and in another ninety-six, from the west side of the said river-bank. It nas been 
constantly used by the occupiers of two houses, from which it is the only road to St. 
'Germains ; and alsd by other people occasionally. It has been repaired by the parish 
at an expense of 20s. to 308. per annum down to 1835, since when they have refuted 
to repair it. 

Piatt, Q.C. (with whom was O^MaUey), for the Crown. — It is a question of law, 
whether the road should go along the bank or not, and whether the Act is sufficiently 
Observed. The case for Uie defendants is, that we should have gone along the arc 
instead of the chord. But the road made is, in substance, the road contemplated by 
the Act of 59 Geo. '3, c 79, which is to run from the south-west end of the upper 
dam named in die Act, along the west side of the river in a southeriy direction, to 
a road running from a house cialled Bentley*s, and thence to the turnpike-road leading 
from King's Lynn to Wisbeach* The road was not meant to go literally according 
to the Act. In efiect, it does so. The commissioners took' the most convenient 
route between the termini, and as nearly in a straight line as consistent with the 
Acts. It was opened to the public in 1822, and has remained so and been used by 
tfie occupiers of two houses and other persons ever since. This case is distinguish- 
able from those of Rex v. EJ^e Lane (4 Ad. & £11. 723), Rex v. Cumbenaoorth (3 
Bam. & Ad. 113), and Rex v. Cumbenoorth (4 Ad. 8c £11. 731), because there the 
roads in question had never been completed ; and, on that ground, the parishes weve 
exempted from liability to repair them. In this case the road is completed to the 
-Ibll intent of the commissftDners; and it has been dedicated by the owners to the 
public, and accepted and adopted by them. This would suffice if the road -were 
wholly different to that directed to be made by the Act. The Act 35 Geo. 3, s. 24» 
enacts that the commissioners << shall make, erect, and support" certain bridges, sluices, 
gates, &C. ; but different langui^ze is used as to the repaur of the roads from that used 
with regard to the bridges. After stating it shall be lawful to make, set out, and 
repair a road, &c., the 39th section expressly enacts that the bridge when built is not 
to be assessed to the county-rate ; intending to save it from the portion of the repairs 
to which it would otherwise be liable in respect of the bridge. A parish, by its own 



act, may be made liable to repair a road, oTen.when gjven uaby.aa indlviduaL: tUU. 
acre so when formed for the public bv the- expiets act or the I^blature. The 
inhabitants have repaired this road for thirteen yeaii after its formation, and thU moat, 
be referred to their persuasion that it was a higoway. The road is the road directei. 
by the Act, aod if it is not, the parish have made it4K> by their adoption. 

KeUug Q.C. (with whom was N. Balmer)^ contrd^ contended that the Court were 
pfieehided from considering whether the Act waa folfiUed by the finding of the jiiryy 
as stated in the case. The 59 Geo. 3 must govern this case. There are no materials. 
bt the decision of the Court, which must be guided by the evidence of the facts. 
It is found by the jury that the road was not that which the Act directed. It should 
have been nude abng the west bank of the river, and it. was not to exceed thirty 
Aet in width. These were £u:ts for, the jury. It was made in a straight line 
from the south-west side of the dam to the turnpike* road, so as not to meet or ioin 
any part of the road from Bentley's house to the turnpike-road, except where they 
both fidl into the latter. [Patteson, J. — ^The termini are the same.] It is not 
contended that that suffices. They have not made the entire road, which is a con- 
dition precedent to the liability to repair, and thus the case falls within the cases 
dted for the Crown. The consideration which induced the landowners to consent to 
die road through their lands is entire and not divisible. {Rex v. Cumberworthf S 
Bim. Sc Adol. 112, per Littledale, J.) There is no security for the continuance of 
tiiis road. The land may belong to an infant or a lunatic. There may have been 
aa outstanding term ; and the reversioner, not being bound by the Act, ma^.stop the 
isad. There must be not only acceptance on one side, but dedication by a known 
ovBcr on the other. (R. v. Edmonton, I Moo. & Rob. 24.) This road has no l^gal 
cttlence. The repairs by the parish are immaterial in amount, and may have beea 
doae to serve a temporary purpose, or to employ the poor. 

PlaU^ in reply. — The parish might have come into court and enforced the making 
of the roadproperly; instead of which they repair it for thirteen years, and thua 
sdopt it. The extent of its utility and the amount of the repairs are immateriaL 

Loan DsvMAN, C. J. — I cannot help observing that this case comes before us in. 
a very inconvenient mode. There are three inconsistent Acts of Parliament imd 
mfym whidi decide the case for us. I do not know» tliat we should jg^ve an 
opinion whether the road is completed or not according to the Act. Be this as it 
BDay, there are other facts whicn make the parish liable to repair this road. In* 
this case» that which the commissioners intended to do has been done ; nothing is 
left incomplete. It does not appear diat the parish ever applied to have any other 
Bhe made, or objected to that which the commissioners had adopted; Parishes are 
leady.eunigb to cast off burthens^- when not bound to bear them; but here, well 
knowing the £u:ts, they acquiesced in what was done, and actually repaired the road 
daring a « poind of upwards of thirteen ^ears.. The owners of the land received 
csmpenaarion for it, and also acquiesced m the use made of the road. ■ This^. I .think^ 
is saCcient evidence of dedication; for vra have no. right to infer that they are. 
iafimts or lunatics, and they cannot be deemed to have been ignorant of what war 
gDing4>n. They could, not complain that .there was. no dedication. The commia- 
sbners appear to have done what was best for the public. There was acqnieacencer 
and dedication by the owners, and adoption by, the . parish. This,. I thinks clearly 
oificesy and that the perish must repair the jroad. 

Pattsson, J. — It seems to me tnat we are precluded fiNMs determinii^ whether, 
thispfriiamfniary line has been porsued. 1 4un; inclined, however, to thmlc it has ; 
but that is not the question. In all the cases, referred tOr the road had not hem 
iriMlljnade; hen ithas. I do notwishtosee the principle of those cases extended. 
Hie iermini a ; 110 and oJ quern, have been observed. All persons, except m Bentley • 
houses may. pass along it, as it : was . intended they shonkL The paroh appease, to: 
fane unifimnly repfured the road; and although the repfin may not have exceeded 
Mr. tbaamount is not materiaL There is evadenoeof a < dedication by the ownes^\ 
and arrep^ance by the padalu 

^^fith M H%, J ■ ' pansurrpd 

CouBuaoi^ J,«.-lMieatisel|rj of Iket sasiatopiniW'aa.U the. Jest HFi»i«^ but It 



n MAGISTRATES' CASES. 

doubt whether we are bound at all by the statement of a case so confused* and having 
reference to so many maps. I think the Act must receive a liberal construction ; 
and that the road need not keep close by the side of the bank of the river and follow 
all its windings and turnings. It did keep on the prescribed side of the river, and 
within a reasonable distance of it. If a jury had found it had thus fulfilled the 
requirements of the Acty no court would have disturbed their verdict. The cases 
cited do not apply to a road which is complete. But our decision may be safely 
rested on the dedication, and on the admission by the parish, by whom this road was 
for a series of years adopted. Is there not ample evidence also, both by length of 
time, and by the compensation accepted by the owners, to rebut the presumption 
that there existed any disability of the owners to dedicate the land, which has been 
suggested as possible? We thinks therefore, diat the verdict ought to stand. 

Judgment Jbr the Crotvn. 



The Qobbk v. The Inhabitants of Fewstgn. 

When a pauper hat beenpreviously removed aa the wife o/L. without appeal being made apainet the 
removal f it ie primary evidence of the husband* 9 settlement ; and the Court will not send a ease 
back to be re-stated, in order to raise the question qf whether such removal was to the wife's 
maiden settlement, 

ON appeal to the Borough Sessions of Leeds against an order, dated Feb. 1, 1843, 
for the removal of Elizabeth Lane from the township of Leeds to the parish 
of Fewston, the order was confirmed subject to a case, of which the main facts 
were these: — 

The examination of Elizabeth Lane, who, in 1840, had been deserted by her 
husband, and then applied for relief to the overseers at Leeds, stated that in that 
year " an order was made by two magistrates of Leeds for my removal from Leeds to 
the township of Fewston, as the last place of my lawful settlement derived through 
my husband, which said order was duly executed, and the overseers of the poor of 
Fewston received me without dispute. This was also stated in the examination of 
another witness, and an order was put in for the removal of " Elizabeth Lafie, the wife 
of John Lanet' reciting that the last place of settlement of the said Elizabeth Lane is 
m the parish of Fewston. 

The grounds of appeal upon which the case turned were, that there was no legal 
eridence that John Lane was settled in Fewston ; that there was no consent on hia 
part to his wife's prior removal there, and that he was then settled in Leeds. 

R. HaU, in support of the order of Sessions. — The order of removal of the pauper, 
in 1840, not being appealed against^ is conclusive evidence, not only that the wife 
was settled there, but of every material statement then made ; amongst these was 
the fact that she was the wife of John Lane. It is conclusive as to her, her husband, 
and her children. (Rex v. Hinxxvorth, Cald. 32; Rex v. Rudgelet/, 8 T. R. 620.) 
The appellants, not having appealed when they were originally aggrieved, cannot 
afterwards deny the settlement. (Rex v. Leigh, Cald. 59; Rex v. Tcmcester, 2 
Burr. 679.) 

Pashley, contr^ — The former order is conclusive only of the wife's settlement, 
which was then alone in discussion, and not the husband's. [Denman, C. J. — But 
that is the same.^ I admit that Rex v. Rudgeley so decides it, but in Rexv, Wrighton 
(Cald. 39) the wife was removed as the wife of B. K. to her maiden settlement, with* 
out reference to that of her husband, and such may have been the case here. [Cole- 
ridge, J. — Here the removal was expressly to the maiden settlement.] It might 
have been shewn that Elizabeth Lane was equally sent to her maiden settlement. 
[Patteson, J.— You mean that you ought, then, to have been let in to prove that?] 
Yes. How are we estopped from doing so ? There is only the case of Rex v. RudsC' 
leyy which I ask the Court to overrule. [Patteson, J. — We cannot, under this 
case as it is here stated, go back to the evidence that might have been given under 
the former order. The case says nothing about your having tendered any evidence of 
that. The statement is explicitly made, that the pauper was removed to F., as ** the 



EASTER TEBBI, 1844. SS 

place of my legal settlement at derived through m^ husband." [Colbridok, J.— 
You have selected two grounds of appeal, and this is not one of them. Is there not 
primary evidence, if not explained ?] It was agreed between counsel on each side 
that this should form a main point of discussion. I ask the Court to send the case 
back to be re-stated. (Reg. v. EUal, Q. B. Hil. T. 1844.) 

Lord Drnman, C. J. — There must be an end to litigation somewhere. If the 
parties wished to stir a question settled for threescore years, counsel, having an 
oj^rtunity of conferring upon the case, should bring it properly before us. 

Order confirmed. 



The Quekn v. The Inhabitants 07 Lbeds (Lbbds v. Prbston). 

Under b9 Geo, 3, e. 50, the wordi ** I paid rent for the whole time qfmy tenancy t^* though preceded 
hy a statement qf a hiring for a year, at a rental qf above 10/. do not iuffidently shew what 
rent was actually paid, so as to give a settlement • 

Quere, if a memorandum of complaint qf chargeaMlity, signed by T. D. as general assistant 
o ve r s e er , will vitiate the order if it purport to be on the complaint q/* the overseers, 

ON appeal at the Preston Quarter Sessions, in the county of York, against an order 
for the removal of Matthew Redmayne from Preston to Leeds, the order was 
confiroaed, subject to the opinion of the Court upon a case which set out the complaint 
of chargeability made by <* Thomas Dixon, as general assistant^overseer qf the poor qf 
At Presion union, of which union the township of Preston, in the said borough, is part.*' 

The examination of the pauper stated that he had become the tenant of a house in 
the town of Leeds in May, 1820 ; he also stated^ " I took the house for a year, at^ I 
believe, 19/. ; but I am not certain whether it was a pound more or less ; I entered 
00 and resided in the house in the said month of May, and continued to reside upoi^ 
it with my family until the month of October, 1821^ when I left it. I paid rent for 
the tokole time qfmy tenancy.*' 

The material part of the grounds of appeal was, that the information and complaint 
of Thomas Dixon^ and the examination of Matthew Redmayne, are bad and defective, 
inasmuch as they shew the said order to have been made, not on the complaint and 
prayer of the churchwardens and overseers of the poor of the said township of 
Preston^ but on the complaint of the said Thomas Dixon ; and yet that the said 
information and complaint of the said Thomas Dixon, and the said examination of 
the said M. Redmayne, do not, nor does either of them, contain any evidence shew- 
ing any authority of the said Thomas Dixon to make such complaint before and to 
the said justices. In another ground of appeal, it was stated, that " he had not in fact 
any such authority, and that the said order of removal is null and void, as made on the 
complaint of a person wholly unauthorized to make the same." Another ground of 
sppeal was, that ** the said examination was insufficient, inasmuch as it does not state 
the house therein mentioned to have been a separate and distinct dwelling-house, 
hand fide hired at and for the sum of ten pounds a rear at the least ; and inasmuch 
as they do not state that such house was held, and the rent for the same actually 
paid, for the term of one whole year at the least, by the said Matthew Redmayne^ 
who is alleged to have been the person hiring the same." 

Cowling, in support of the order of Sessions. — It was not necessary to send the 
complaint of chi^eability to the appellant at all. It is not required by 4 & 5 Wm. 
4, c 76, s. 79. llie act of the assistant-overseer is the act of the overseer. (Reg. 
V. Betldingham, ante, p. 2.) The order is perfectly regular, and speaks of the com- 
plaint of Uie overseers, therefore the appellants had distinct notice that it was the act 
of the overseers. It, is, moreover^ a question whether the assistant-overseer may not 
go to make the complaint. The statute of Charles does not require the overseers to 
make the complaint in person ; if made on their behalf, it will satisfy the statute. 
The 46th sect, of 4 & 5 Wm. 4, c. 76, gives the power to the guardians and over- 
seers of appointing proper officers to carry out the Act, and s. 109 includes within 
this power the appointment of assistant-overseers, who are often the fittest persons to 
Bungle with the pooVf and ascertain their condition and the facts which make them 



3ttid.it>i» quite ooiiii8litii6(witlr)Nl>bliMKt]p«thiit'tiie'«Tierseer8 mfgfat be present at the 
'time tbe oonlilaint wa^inide, nincbrnM not be in writing. (ReF> ▼. Buch, 2 ^de 
ifr Dar. 660, per DeniMui/C. J.) 'No'nolioe'of eomplflnit'neea^be given, except 
that in the order. (Res. t. IMhwhamt ' S'/Gde &• Dav. 523.) The objection, there- 
lbre» anxrants to this, mt a «crap of paper infbrmailj'drawn is nnneoessariljr tent. 

The rentmg of the teneaient is-siiffidently stated to satisfy'SS Geo. 8, c. 50, (a) 
under which it Iklls. Hie nana of the landlord is not essential. {Reg. v. FonMmeif 
2 Q. B.'548.) The taking and renting of the tenement are sufficiently stated ; for 
although it is not expressly said that the rent for the whole time stated to have been 
paid by the pauper was the same rent he had agreed to pay, and in respect of the 
same hiring, that must be the meaning of the words ; and they would be understood 
by every one accept atspedal pleader or some-oaptiaas pereon. In ordinary language, 
there can be no doubt whatever. (R. y. PiUan^outS Gale & Dav. 319.) 

M.CHatt {ynth whom was Whigham)^ contrd«-->lliomas Dixon is not described 
as assistant-overseer, but as << general assistant-overseer of the union," and therefore 
he is not assistant-overseer of the township. The act of the overseers afterwards in 
sending the order could not ratify that which was itself a void, and not merely a 
voidable act. (Rex v. Abermm, 1 Gde A^ Dav. 261 ; HarmleyY. RoOnoeU, 13 Law 
Joum. M. C 39.) 'Great strictness' is reooired in the statement of the payment of 
the rent (A^.v. Pm^j^/, 2^Gale & Dav. 700.) The statement made is con- 
aistcat with tm payment^of^MnMlthing towards the rent all the time. 

^By the Couet. — ^We do not iind a settlement here ; we do not know, from* Vbk 
eoaminationi what rent was paid^ (6) 



The Qubbk v. Ths Inhabxtakts ov St. OLAT:Bfs/ Southwark. 

Ai^0xmimuaioHfin order to ohiw a mUinuni kjfpasfmeni qf rates, tmder 35 Geo. 3, e. lOhmmti 
state that the rate wae pad for the time the pauper had oeevpation—A certiorari need notpre^ 
eitd^deeeribe the order it remome. 

ON appeal^ founded on a subsequent settlement, against an oider of removal 6t 
James Walker,, a pauper, from St Olave's, Southwark> to St Mary Megdalep, 
Bermondsey, the Sessions quashed the order, subject to a case as to the sufficiency 
of the statement of the grounds of appeal^ of which the following is the material 
part: — 

"James Walker, io oiviabout the month ofMay 1821, became tenant of a house 
. situate in Fore-street, in the parish of St. Clement*s, in the town or borough of 
Ipswich, in the county of Siiffblk, and hired ^the same of a Mr. Garrard, at the yearly 
rent of 15Z. and occupied and redded therein for upwards of seven months, and paid 
one or more of the parochial rates or taxes in respect of the said house» so situate in 
Fore-street, in the s&id parish of St Clement's'.'* 

Wattinger, for the respondents.— The certiorari iinpronerly describes the record 
as on order made on appeal by inhabitants against inhaoitants, whilst the return 
states the order to be founded on an appeal by the << churchwardens and overseers ** 
of the parish of, &c. Inhabitants cannot appeal. The parish officers are the proper 
parties to do so. (A. v. CoJheck^ 12 Ad. & Ell. 161.) Where the certiorari^ im- 
properly describes the document to be removed, it may be quashed. (JR. v. Plinth 2 
Lord Raym. 82Q.) 

(a) TUi Act requires the teDement to be " bend paid the rent for the ^hole time. Bat why was 
fide hired by each person, at and for the sum of ten the word '* the " or the sum paid omitted ? It is 
pounds a year at the least, for the term ofone whole dear that tbe words, ** I paid rent the whole time*' 
year ; and that the rent fur the tawie be oeAfoHy (not /or the whole time) may mean some rent only : 
paid for the term of one whole year at least."— 5. and it is obviously right to prevent the trickery that 

(b) This case is a good example of the slovenly might be let in were sach loose language to pass, 
mode in which examinations are taken. Nothing »^S, 

can be more likely than that the pauper meant hS 



EAOTSR.TEBM. ISM.. S5 

Montague Chawtbert (with whom was Comer), for the appeUantt.— It it too late 
to object to the certiorari when the case comes on to be heard. {Reg. y. Fordham, 
11 Ad. & EU. 73.) 

By the Court. — It is the invariable-practicej and it cannot be called a variance, so 
to describe the order. 

WhiUngeTf in support of the order.— It is sufficiently stated that the pauper paid 
tbe rates ; for where it does not appear that another person paid the rates, the pre- 
nmption is, that the tenant paid Uienu It is not necessary that the party's name 
ifaoold be on the rate. (2* Salk. 478.) In JS. y. Edgebaeknt(6 Term Rep^ 540), it 
distinctly appeared thiit another person was rated. 

CdiERiDGEy J. — How does it appear here that any rates were paid whilst the 
tenant was in occupation ? Order quashed. 

Jtf • Chambers and Corner^ for the appellantSy were not called upon. 



Q.B. Thursday^ May % 

l^X QUEEK V;-WlLS0M AKD OTHERS. 

CMtm^. — The Court qf Queen's Bench will remove am indieiment qfter it htu been quathed by 

an order ^f Quarter Seosiom. 

AK indictment preferred by Augustus Newton for a riot, was quashed by the Ses- 
. sions at Gloucester, upon an objection made by counsel for the defendants at 
the time of the triail, but not by demurrer. A rule ntsi had been obtained to remove 
the mdictment and the order whereby it was quashed by certiorari. 

Greaves shewed cause. — ^Whatever the Sessions have done, right or wrong, 
soiounted to a judgment, and, at this stage of the proceedings, can only be removed 
hy writ of error, and not by certiorari. (2 Haw. P. C* c. 27, s. 31 ; Croke Jac. 404 ; 
Lmg*s case« Cro. Eliz. 539 ; R. v. Jackson, 6 T. R. 1 45 ; R. v. Pennygoes, 1 Barn. & 
Cr. 142.) The Sessions have power to quash an indictment. (i2. v. Norton, 8 Car. 
& P. 196 ; Roohoood's case, 4 State Trials, 673; Frith*i case, 1 Leach, 12; R. v. 
WheaUy, 2 Bur. 1125; R. v. Young, 3 T. R. 106; R. v. Ward, I Starkie, 301.) 
The Sessions had full authority to quash the indictment in this particular case, there 
bemg several defendants charged in different counts. In the first, eleven defendants ; 
and in the other counts, a smaller number of the same defendants. {Rex v. Kingston, 
8 East, 41.) 

Keaiing apneared for the justices, to express their conciurrence in whatever the 
Comrt might decide. Their chairman had been served by Mr. Newton in person 
with the rule nisi, in full court of Quarter Sessions, as Mr. Newton stated, at the 
tpedal suggestion of the Lord Chief Justice. 

Newton, contrft. — There is no power in the justices to quash an indictment The 
object in bringing up the indictment is, that if brought before their lordships, and it 
nypears to have been quashed by an order which was itself a nullity, it may be ^ent 
down for trial as a good indictment. (Jervis's Archbold, p. 64, 8th edit. ; R, v. 
Hampshire, 9 DowL 171 ; Reg. v. Taylor, 9 Dowl. 600; Reg. v. JVest Riding, 5 
Term Rep. 629.) 

Lord Dbnman, C J. — ^It seems to the Court that the rule should be made absolute. 
If there is a regular judgment to quash the indictment, then the prosecutor has a 
right to bring his writ of error on that judgment. If it b only an order made hy the 
Quarter Sessions, we ought to see what it is. Ruk absolute. 



26 IfAGISTRATES' CASfeS. 

Q.B. Tuesday, May ^. 

Th£ Queen v. W. S. Wood, Esq. 

Ifft¥f0 iurveyars qf roadi are appointed for two separate portione qf the eame parith, and thi 
road-raiee in each are eeparately collected, hut form only one whole rate for the entire parieh^ 
payment of the rate to either surveyor suffices. 

A RULE had been obtained in this case, calling on Wilh'am S. Wood, a magistrate 
for the county of Hereford, to shew cause why a mandamus should not issue, 
'< commanding him to join and concur with Francis Hamp, esq./' another magistrate oi 
the same county, in granting warrants of distress by enforcing certain road-rates in the 
parish of Abbeydore* Hie affidavits shewed that there were two surveyors ap- 
pointed ; one for the upper, and one for the lower division of Abbeydore ; and that 
the road-rates had for twenty-six years been separately paid to them, and the pay- 
ments of individual parties divided, in respect of land lying in each division ; but 
that the rate thus collected formed one rate for the entire parish, the words upper 
and lower division being not mentioned in the rate-book. The parties summoned 
had refused to pay rates to one of these surveyors, on *the ground that he was 
in insolvent circumstances, that he had not kept proper accounts, and that he 
intended to apply the rate to the repair of a road which was not a highway; 
they, however, expressed their readiness to pay the rates due from them to the 
other surveyor. Mr. Hamp, the justice who was willing to grant the warrant of 
distress, was, it appeared, an interested party* 

Talfourd^ Seijt. (with whom was Greaves). — Either the appointment of the sur- 
veyors or the rate was bad. If there were two separate surveyors, the rate was 
bad, because made for the entire parish ; or if the rate was for the whole parish, 
there ought not to have been two separate appointments of surveyors. It is 
im|>ossible that the rate can be maintained, and where it is not clear that it 
can, the Court will not interfere. The application is wrong also in form; it 
asks that Mr. Wood be made to concur, and, therefore, ought not to be directed 
against one person only. 

Greaves, on the same side, was stopped by the Court. 

Sir G. Letoin, in support of the rule. — There have been separate surveyors for 
twenty-six years, and rates have been paid separately for each district, and 
there has been no appeal. 

Patteson, J. — Are they separate rates f 

Talfourd, Serjt. — No ; they are set out for the whole parish. 

Lord Denman, C. J. — The rate in this case appears to have been clearly one 
entire rate; nor is it less so because the surveyors have been appointed, and 
have collected the rate for two separate districts. 

Rute discharged with costs. 



Ex PARTE The Duke of Marlborough. 

A criminal information will not be granted for mere words spoken against a magistrate, impute 
ing to him corrupt conduct in his magisterial capacity, if unaccompanied by acts tending di' 
rectly to obstruct the exercise qf his functions, 

THESIGER, S. G. moved for a rule to file a criminal information, upon the com- 
plaint of his Grace the Duke of Marlborough against L. C. Humfrey, esq., bar- 
rister-at-law, on the ground of certain statements made by him in the centre of the 
lurisdiction, and relating to the character of his Grace, in his magisterial capacity, 
before persons over whom that authority was exercised, and by which its efficiency, 
when called into activity, was likely to be materially impaired. These statements 
(of which Mr. Humfrey had probably been made the unconscious instrument by other 
parties) were put forth by him at Woodstock on the occasion of an election of a 
member to serve in Parliament for that borough, but at which election Mr. Humfrey 
had DO chance or expectation of being return^. Every statement which was at all 



EASTER TERM, IBU. . 27 

specific and detailed was completely answered in the affidavits* The statements 
against the Duke of Marlborough in his magisterial capacity were, in substance, 
t&se : — That a complaint having been instituted against a tenant of the duke named 
Harrisy for rescuing his horse when distrained by the duke*s hayward for trespassing 
on the duke's ground, the magistrates who heard the charge refused to decide the 
case, but that his Grace, acting alone as judge in his own case, and sitting upon a 
dog-kennel, with a glass of ale in his hand, had sentenced Harris to a fine of Is. and 
19sL costs ; who, not being able to pay the fine and costs, was committed by his Grace 
to prison. The material facts were all denied or explained in the affidavits. There 
were various other stetements derogatory to the general character and reputation of 
the Duke of Marlborough. 

LoBD Dbnmak, C. J. then delivered the judgment of the Courts — There can be 
DO doubt that the words which form the subject of this application convey a grievoua 
imputation against the Duke of Marlborouffh, and it is not to be wondered at 
that his Grace should have thus sought vie means of coming into court, in 
ofder to deny, upon oath, the charges thus made against him. The question, how* 
ever, which the Court has alone to decide is, whether it has the power to order a 
criminal information to be filed upon this application. We think it is clear that 
there is no authority for such a course, and that we ought not to grant this applica- 
two. It is not sworn that the imputations are likely to lead to a breach of the peace. 
Ibe only charge made upon which the Court doubted whether this motion might 
be granted is, that which imputes unfairness and corruption to the Duke of Marl- 
horan^ in the exercise of his magisterial functions. The denial of this charge is 
coai|£ete ; but the Court finds no authority or precedent in which the mere speaking 
of imds to that effect has been held sufficient^ ground on which to grant an appli- 
catJOD for a criminal information, unless such words were addressed to the magistrate 
bioself whilst in the immediate exercise of the magisterial office, and there 
has been some direct obstruction to the administration of justice, and not ■ 
merely the speaking of words imputing misconduct. In Starkie on Libel, edit. 
1830, it is doubted whether *' the case may not be different if any specific act 
of oppression or corruption were imputed to a magistrate in the perform- 
ance of his magisterial functions;*' but this doubt is still a doubt, without any 
authority to support it. The learned Solicitor-General has failed, contrary to the 
expectation of the Court, to shew them how any of the cases which have occurred 
support this application ; he has not referred to a single dictum upon the authority of 
which it might be granted. From this omission the Court infers that none such 
exists. There is, however, one principle pervading all the cases which have occurred 
CD this subject, and that is an unwillingness on the part of the Court to make mere 
words amount to a crime. There is in such cases so much liability to misunderstand, 
so much difficulty in proving what is said, and so many explanations are available for 
the purpose of qualifying and excusing offences which consist in verbal statements, 
that the Courts have been properly reluctant to act summarily on oral testimony, 
that we feel we ought not to interfere with a course so well understood. We could 
not do so without violating the authority of established precedents, and setting 
an exam[)le for inquiries of which the results would be unsatisfactory to the parties, 
and injurious to the interests of justice. Rule refused. 



Q.B. Wednesday, May 8. 

The Queen v. The Justices of Cornwall. 

tVheu the Court of Qiuarter Sessiotu hot decided on the materiality of ony omission in the exami^ 
nation of a pauper ^ or in the grounds of appeal against an order of removal ^ this Court will not 
imterfere ; and the magistrates* eosts*mu$t be paid by the parties making the application. 

ON the removal of Richard Gray and his family from the parish of Kenwvn to the 
parish of Redruth, both in the county of Cornwall, the overseers and church- 
wardens of the parish of Recbrutb gave notice of appeal ; and stated as one of the grounds 



»^ BUyMBCTATBS* QISBBi 

of ^ftppeali that '< subsequently to the BoqiiisitioR*by 'lUl^hiurdOray (the father of the 
pauper,' fWM9' whom the alleged settlement in the parish of Redruth was derived) of 
ms alleged settlement inRedmth^ thbsaid pauper acquired a settlement by inhabit-< 
ing^' as an- apprentice, by the space of fbrt;f days and upwards, in the parish of 
Aberayon^ in thb county of Glamorgan, at divers intervals in the years 1822^ 1823, 
1824, and 1825,' or thereabouts, under and in pursuance of an indenture duly made 
and executed b^ the said Richard Gray, and one James Jenkins, now of Aberavon, 
and then a manner, in or about the year 1822, whereby he bound himself to serva^ 
Sic*** There were several other grounds of appeal j setting up settlements gained by 
inhabiting in other parishes, '< under and in pursuance of the said indenture." The 
appeal came on to be tried at the General Quarter Sessions of the Peace in and for 
the county of Cornwall, held at Bodmin, on the 17th of October, 184f3/ when 
the respondents proved the settlement of the pauper's father in the appellant 
parish ; the appellants* counsel then proposed to go into evidence, to prove the 
pauperis subsequent settlement by apprenticeship in the parish of Aberavon; but* 
the counsel for the respondents thereupon* insisted that the grounds of appeal were 
defective, in not stating particularly tne date of the indenture of apprenticeship- 
therein set forth, and Siat the appelllmts, therefore, were not at liberty to give^ 
any evidence in support of them ; and the Court of Quarter Sessions, so holdings 
confirmed the order of removal. In last Hilary Term^ the appellants obtained a 
rule itm for a mandamus to the justices to enter contmuances and hear the appeal* 

The following cases were then referred to: Rex y* The Justices of Derbyshire 
iCastletm v. BradwU) (6 Ad. & £11. 885) ; Reg.y. The Justices of the West Riding 
tf Yorkshire (Dr^hlington v. Pudsey) (2 a B. 505, 1 Gale & Dav. 706) ; Reg. r* 
North Bovey (2 Q. B. 500, 1 Gale & Uav. 701) ; Reg. v. Inhabitants of Stouford (2 
Q. B. 526, 2 Gale & Dav. 390) ; Reg. v. The Inhabitant ofStoneleigh (2 Q. B. 5S0, 
2 Gale Sc Dav. 5S5) ; and Reg. v. The Inhabitants of St. Margard, Rochester (2 Q. B* 

M. Smith nowshewed cause. — ^The case of JRe^. v. The Justices of Kesteven, Lincdn'^ 
shire {ante, p. 8), decided in this court during the present term, is a conclusive authority 
against this rule. There the Sessions held, that an omission to state in the grounds 
of appeal the particular house in which the apprentice resided was, under the circum- 
atances of that case, a material omission, and the Court refused to interfere. 

Lord Demman, C. J. — Mr. Greenwood, what do you say to this case } 

Greenwood, for the appellants. — This objection to the grounds of appeal assumes 
as a fact that every indenture of apprenticeship bears date. 

Lord Denmak, C. J. — No ! The Sessions say, that in this case the date ought 
to have been stated ; they hold the omission material, and we cannot interfere. The 
rule must be discharged. 

Greenwood. — 1 hope not with costs. The case of Reg, v. The Justices of Kesteven 
was not decided when this appeal was tried. 

Lord Denmak, C. J. — If the magistrates are the real defendants, their costs must 
be paid. 

Rule discharged^ xmtk the costs of the justices only. 



EASTEB TERBl, 1844. 89 

The Queen v. Framptok. 

Ai^iauUmimanindieimenifor the non'repair of a highway^ ig not entitled to be dteeharged Jrom 
tie mUetmemi upon the production of a certificate of two jueticee and qgidamta, which merely 
ttait that " the road is now in repair;** they ehould ehew something done since the finding 
^ikejwry, 

BARSTOW shewed cause against a rule obtained by Cockbum, Q C. on a previous 
day in the present term^ calh'ng on the prosecutor of an indictment for the 
ooD-repair of a highway, situate in the parish of Wool, in the county of Dorset, to 
ihew cause why a fine of 6s. 8d. should not be levied upon the defendant ; and why, 
upon pajmoit of the same, he should not be discharged from the said indictment. 
Tlie rule was obtained upon the production of a certificate signed by two justices, and 
aa affidavit of one John Swaffield, bailifiP, stating that they had severally viewed the 
raady and that ** itis now in repair.*' It is submitted that that is not sufficient, and that 
a defendant liable ratione tenura to repair a road, cannot discharge himself from an 
indictmeDt for non-repair found against him without shewing that^ since the verdict, 
nme money or labour has been expended upon it ; otherwise the Court would be 
ailkd upon to try over again upon affidavit the question already decided by the jury. 
Here the certificate of the justices and the affidavit of Swaffield merely contradict the 
fiatfiag of tbe jury, that the road was out of repair. 

CoeUum, Q.C* contr^.— It is quite clear that this certificate and affidavit are 
M coaCrmdlction of the finding of the jury ; they refer to a difierent time ; and 
the &et that the road is at present in repair is not denied by any affidavit on the 
other nde. 

IpBD DmiMAKy C. J.^ — I think the more reasonable course will be to enlarge 
tbtrale. 

QKkbmrnj Q. C. — ^I hope your lordship will allow us to amend our affidavits. 

Barticnm — I trust not« I am entitled to discharge the rule according to the prac- 
tice of Uie court; but I consent to its being enlarged. 

LoBD DsMMAN, C.J» — The rule must be enlarged. 

(a) Rule enlarged. 



Sittings after Easter Term, 1844. 

Q.B. Friday, May 10. 
The Queen v. The Grand Junction Railway Company. 

i JUivdy Company exercised over their own and other lines qf railway the right qf being carriers 
m their own account qf passengers and goods t providing for themselves all things necessary and 
eomtenieni for that business, and charging reasonable fares and freights in addition (as regarded 
ttnr own line) to the tolls, which, by the Acts of Parliament incorporating and regulating the 
C km pany ^ ikey were authorized to taket and by that carrying trade, as well as by the tolls, they 
umde profUs, Other parties also carried on the same trade on the Company*s line, some providing 
for tkustweioes ail things necessary for the purpose, and subject only to the control of the Com- 
psmy, under the Company* s Acts, and the general Acts for the regulation of railways, and paying 
to the C omp any the tolls fixed under the Company's Acts; others hiring from the Company 
Mfmeff, stations, 8fc. and all things necessary excepting carriages, and paying to the Company, in 
adHHon to the said tolls, a compensation for the accommodations provided for them; and all those 
pertim made profits by their carrying trade, TTte Company, in compliance with the provisions 
ef their Acts, kept accounts of tolls actually received by them, as well as qf the tolls which would 
have been received by the Company \f the goods and passengers, Sfc, carried by them, had been 
carried on the railway by other parties. 

BeU, that the Obmpany were rateable for the improved value given to their land in any parish by all 
ike profits arieing from their occupation qf the railway, including as well the amount qf fares 
satd freights received by them, as carriers, for the conveyance of passengers and goods thereon, as 
the amount qf tolls actually received by them from other carriers on their line ; and that the ftet an* 

(•) In tkt following T^riaity Term this role was in fact been repaired. As to another requisite upon 
Bade abiolate, Bamtow^ for the prosecutor, haTing this application, see Bex ▼. Inhabitants qf Witney 
coasrated to forego the objection aoore reported, and (6 Dowl. 72S). 
t^Me hsi^ M danU Q« hit part that the road had 
▼OL. I. C 



30 IIAGISTRATES* CASES. 

nuai rateable value qf the property qfthe Company might properly be ateertained by taking the 
grott yearly receipts qfthe Company throughout their railway, and then from that sum making 
deductions on the following accounts : 1st, a per-centage for interest on the capital invested in 
the trade ; ind, a per-centage for tenants' profits and profits of trade ; 3rrf, a per-centage on the 
capital for the depreciation of the stock in trade beyond all usual annwU repairs; ith, a sum for 
the annual cost qf conducting their business; bth, the fair atmual value of stations, offices, stores, 
Sfc, separately rated in the parishes where they are situated; 6th, a sum per mile for renewing or 
reproducing rails, chairs, sleepers, 6fc, The residue is the sum which a tenant from year to 
year might reasonably be expected to give for the railway and other corporeal hereditaments 
{excluding the rent of the stations rated separately) in connection therewith, he having the power 
of using the railway as the Company, and with no other privileges than they possess ; and the 
principle of a mileage division, for the purpose qf ascertaining the amount qf rate to be imposed on 
that part qfthe railway situate in the respondent parish, was in this ease admitted to be fair, and 
was adopted by consent. 

ON appeal against a rate or assessment made for the relief of the poor of the 
parish of Seighford, in the county of Stafford, on the 6th of August, 1842, by 
which the Company of proprietors of the Grand Junction Railway were rated in 
respect of the Grand Junction Railway passing through the said parish and the land 
adjoining, in the sum of 1,050/., the Court of Quarter Sessions holden at Stafford, 
in and for the county of Stafford, confirmed the rate, subject to the opinion of this 
Court on the following case. 

The appellants were incorporated, and the Grand Junction Railway was formed 
by and under an Act of Parliament of the Srd Wm. 4, c. XXXIV. (local, personal, 
and public), altered, amended, and extended by other Acts of Parliament passed 
respectively 4 Wm. 4, c. IV. ; 5 Wm.4, c. VIII.; 5 Wm. 4, c. IX.; 1 & 2 Vict, 
c. LIX. ; 3 Vict. c. XLIX. ; which are to be taken to be part of this case. 

Under these several Acts, not only has the line of railway, as originally con- 
templated, from Warrington to Birmingham, been constructed and opened for the 
public use; but other railways (made by other parties from Warrington to Newton, 
and from Crewe to Chester, and long since opened) have been vested in and become 
the property of the appellants ; and these, by the provisions of the said Acts, or 
some of them, now form part of the Grand Junction Railway ; and the whole is ma- 
naged, as to accounts and otherwise, as one entire business. 

Over all these railways, and also over the Liverpool and Manchester Railway 
(between Newton and Liverpool in one direction, and Newton and Manchester in 
the other), the appellants themselves exercise the right of being carriers on their 
own account, of passengers and goods, providing for themselves stations, or stopping- 
places, locomotive power, carriages, coke, and watering-places, and all other 
things necessary and convenient for the conveyance of passengers and goods ; and 
charging for such conveyance reasonable fares and freights, in addition (as regards 
the Grand Junction Railway) to the tolls or tonnages which they are authorized by 
the said Acts to take; and by this carrying trade, as well as by the tolls^ the appel- 
lants make profits. 

Other parties also exercise the right of being carriers over the various parts of the 
Grand Junction Railway, and amongst others, over that part of it which lies in the 
respondent parish, providing for themselves, without the consent or concurrence of 
the appellants and independently of them (subject, however, to the control of the 
appellants, under the provisions of the said several Acts, and also subject to the 
provisions of the several Acte of Parliament for the regulation of railways), locomo- 
tive power, carriages, coke, and watering-places, and all other things necessary and 
convenient for the conveyance of passengers and goods, and separate stations or 
stopping-places adjoining the railway, and the needful branches into or communica- 
tions with the same; and they, like the appellanu, make profits of their trade so 
carried on by them over the railway; and they pay to the appellants the tolla 
or tonnages duly fixed by the appellants, pursuant to the said Acts or some 
of them; and being the same tolls as form the basis of the calculations herein- 
after mentioned, as contended for by them, the appellants. 

A third class of carriers over the Grand Junction Railway hire from the Grand 
Junction Railway Company locomotive engines and the use of stations, &c., but find 
their own carriages, and they likewise make profits of their trade over the railway. 



srrnNGS after easter term, isii. si 

Tbefe also pay to the appellants the said tolls or tonnages, besides a compensation 
for the use of the power, stations^ and the other accommodations provided for them. 

The total length of so much of the railway as lies between Birmingham and 
Newton is 84 miles, and from Crewe to Chester is 21 miles, making together 105 
miles; and the distance (along the Liverpool and Manchester Railway) from 
Newton to Liverpool is 15 miles, and from Newton to Manchester 16 miles ; the 
length of railway within the respondent parish is one mile, and there is no station, 
•topping-place^ or property of the appellants other than the railway itself in the 
laid parish. 

The appellants have duly caused toll-boards or lists to be made and published as 
required by sections 165 and 166 of the statute first above mentioned. The appel- 
lants have also duly kept accounts of tolls, as required by sections 19 and 20 of 1 & 2 
Vict. c. LVL, and by section 27 of 3 Vict, c XLlA., and free access has been 
afforded to them, as required by these Acts. 

The fares and charges for the conveyance of passengers, goods, parcels, &c. by the 
appellants, as carriers^ are regulated by the number of miles through which they are 
carried, as well as by their weight, bulk^ value, &c. and various other circumstances^ 
m like manner as the fares and charges of other carriers. The gross sum received 
hj the appellants as tolls, rates, or duties, including both what they receive from 
other companies, or persons using the railway as carriers, and also the gross sum of 
tolls, rates, or duties (of which an account is also kept as aforesaid), calculated 
upon all the passengers, goods, &c. carried by them for their own profit (added 
together), amount actually to the sum of 1,500/. in respect of so much of the railway 
ss lies in the respondent parish, and for the current year of rating ; and this i& 
die gross produce of the land which the appellants, if not carriers, or which a lessee 
of the tolls, rates, or duties would, in fact, have received as such lessee, howsoever^ 
or by whomsoever the carrying business of the railway was conducted ; and the 
ippellants contended that this latter sum (1,500/.) so found, ought to form the 
basis of any rate upon them in respect of their rateable property in the respondent 
parish. 

The gross yearly receipts of the Company, including as well the tolls actually 
received by them, as the tolls, fares, freights, and profits of every kind derived by 
them, as carriers upon, and owners of, the Grand Junction Railway and its appur- 
tenances, in all the parishes between Birmingham and Newton, and Crewe and 
Cliester (excluding the receipts over the Liverpool and Manchester, and the other 
railways which do not belong to them, but for passing over which, as carriers, they 
pay tolJy in the same way as the independent carriers over the Grand Junction Rail- 
way), and including also the profits of their stock in trade and the personal property, 
used by them as carriers, in connection with and upon the entire Grand Junction 
Railway, and their working over and along it, and also the rents, profits, and value 
of all their stations and other conveniences at and between Birmingham and Newton^ 
and Chester and Crewe, — are agreed, for the purpose of this case, to amount to a sum^ 
of 440,366/. for the current year of rating ;*and adopting the principle of a mileage 
division thereof — that is to say, dividing the same by 105 (being the total length of 
the Grand Junction Railway), the amount is 4,190/. and a fraction, in respect of so 
much thereof as lies in the respondent parish ; and it is for the purpose of the present 
case admitted that that mileage principle of division is fair and equal as respects the 
respondent parish. 

It was admitted and agreed (subject to the opinion of this Court as to the propriety 
and principle of each item of deduction) that if the 1,500/. (that is to say, the amount 
of tolls) is to be adopted as the basis of the calculation, then the full net annual value of 
the appellants' rateable property within the respondent parish will be 712/. 10s., being 
the 1,500/., minus the following deductions, which the Court of Quarter Sessions find 
to be reasonable in fact; viz. 1st, 20 per cent, thereof, as for the tenants* subsistence 
and profits (regard being had in this case to the extensive amount of responsibility, 
nsk,\c); 2nd, 2/. 10s. per cent, as for collection of the tolls; 3rd, 350/. per mile 
for the maintenance of Uie railway, with the works and fences, and for gatekeepers, 

c2 



3i MACnSTHATES' CASES.' 

and also for engineermg and police (as to so nrach of die two latter items as are 
fairly chargeable on the proprietors of the railway, as such) ; 4th, 70^. per mile for the ^ 
poor-rates, highway-rates, chbrdb-raies, and tithe-commutation rent-charge; and, 
5th, SO/, per mile as for renewing, or re-producing those portions of the subject- 
matter of the rate which are of a pernhable nature (such as the rails, chairs^ and ' 
sleepers, &c.,) when rendered necessary by accident or decay. 

The parish officers adopted, and the Court of Quarter Sessions sanctioned by their 
judgment, a different mode of arriring at the net annual rateable value of the property 
of the appellants in their parish. Hiey ascertained the gross yearly receipts of the - 
Company throughout their railway as stated above, viz. 440,366/., and then made 
therefrom the following deductions ^the propriety, principle, and completeness of 
such deductions, as well as the propriety and principle of the respondents' mode of 
arriving at the net annual rateable value of the rateable property of the appellants in 
their parish, being referred to the opinion of this Court, and the Court of Quarter 
Sessions finding such deductions to be reasonable in fact) ; viz. 5/. per cent, as for in- 
terest on 255,000/., being the capital necessary for, and actually invested by the 
appellants in the purchase of engines, carriages, and all the other moveable stock 
necessary for the business of carriers as conducted by them in the manner aforesaid. 
Secondly, 20 per cent, on the same sum as for the tenants' profits, and the fair 
profits of such a trade carried on by means of so large a capital, and with such large 
risks. Thirdly, 12/. 10s. per cent, on the said last-mentioned sum as the fair annual 
amount of the depreciation of such stock considered to be in the hands of a tenant 
from year to year (beyond all needful and usual annual repairs and expenses). 
Fourthly, 198,962/. per annum, being the appeUants' reasonable annual cost of con- • 
ducting their business during the same year in which their earnings as aforesaid 
amounted to 4,190/. per mile in Seighford, namely, (in the coaching department) 
wages of guards, conductors, porters, station-keepers, clerks, and policemen ; repairs 
of carriages, trucks, and horse-boxes ; horsing, parcel-carts ; oil, grease, &c, for 
carriages ; and duty on passengers ; and (in the merchandize department) salaries and - 
wages of agents, clerks, porters, &c. ; repairs of waggons and carriages ; of live stock 
expenses ; and (in both departments, and generally) locomotive power ; enginemen's 
and firemen's wages ; engineering ; repairing ; and cost of materials, including coke, 
maintenance of way, repairs of stations arid buildings ; office and ^neral expenses, 
including insurance and advertising, charge for direction, compensation account, rates 
and taxes, law expenses, and general petty disbursements attendant on the several 
businesses of railway owners and of railway carriers. Fifthly (as the stations, offices, 
stores, and building and repairing works and premises throughout the railway, have 
been and are separately rated in the several parishes in which they are situated, 
although necessarily used and occupied for the purposes of and in connection with it, 
and with the conduct of the traffic upon it), the respondents further deducted the 
fair annual value thereof, viz. 9,150/. And sixthly, SO/, per mile as for renewing or 
reproducing rails, chairs, sleepers, &c. as before. The balance, amounting to the net 
sum of 135,589/., was taken to be the net annual value of the whole railway,1nde- 
pendently of the stations and other buildings, &c. rated separately. And the 
Sessions found, as an inference from the above facts, that the railway and other corpo* 
real hereditaments of the Company in connection with the railway, might reasonably 
be expected to let to a tenant from year to year at the last-mentioned sum oi- 
135,589/., exclusive of the rent of the stations and other buildings rated separately, 
such tenant being assumed to have the power of using the railway and all its appur- 
tenances, now the property of the Company, under the same circumstances as the 
Company, and with no other privileges and advantages than the Company now 
possess. 

The principle of mileage being agreed upon by both parties as fair for the pur- 
poses of this rate, both as applied to the expenses and deductions as well as receipts, 
the net annual rateable value of so much of the railway as lies in the respondent parish 
is to be taken at 1,050/. at least, supposing the principle of rating adt^ted by the 
parish officers in this case to be just and correct. 



SITTINGS ikFT£H. EASTSR T£RM, 1844. 38 

• Of the totftl net teceipto of the Company, only about 30,000^ per annum are re- 
mwed in the shape^of tolls firom other partiea using the railway on their own account. 

iJl the other rateable property in the respondent parish is rated upon an estimate of 
die net annual Talue thereof within the meaning of tlie Parochial Assessment Act, 
sod without directly taking into account any receipts, expenses, ^r allowances haviqg 
reference to the amount of actual profits made thereon. 

The appellants have not any stations or buildings in the respondent parish. In 
WIOU8 pariahes along the line of railway the parties who (as before mentioned) use 
the railway as carriers, aud have stations with buildings, &c., with branches into the 
ii3way, aod other conveniences connected with the railway, are not rated (in the 
particular parishes or elsewhere) upon or in respect of, or with any reference to, the 
Orand Junction Railway, but solely for their stations. The appellants derive no 
pecuniary profit whatever from their land in the respondent parish, except from the 
tonnages and tolls, and firom their fares and other receipts hereinbefore mpntioned, 
sad their trade as carriers in common with other carriers over the same (if indeed 
these latter profits are to be considered as profits arising from the land, which the 
appellants contend they are not). The appellants contend that even assuming the 
late to be founded on a just principle and proper basis, the deductions allowed by the 
nuoodenta do not include all the items necessary to briog out the net annual value 
—taat is to say, the rent at which the property (contended by the respondents to be 
the appellants' rateable property) might reasonably be expected to let from year ta 
jev (amongst which omitted deductions, tlie appellants instance, by way of exaraple^ 
«i annual allowance for good-will, &c.). 

For all the purposes of this case, the accompanying map is to be considered part 
ofit. (A plan of the different main railways and their branches mentioned above, 
iftdfyiog the lengths of each as above stated, is annexed to the case.) 

The Court of Quarter Sessions adopted the principle of rating, and the deductions 
contended for by the respondents, as furnishing the net annual value of the appellants' 
nteable property, pursuant to the Parochial Assessment Act, and confirmed the rate 
accordingly ; but on the application of the appellants, granted a case for the opinion 
of the Court of Queen's Bench on the several questions hereinbefore raised and stated; 
the Court of Queen's Bench to have the power of amending or of quashing, or other- 
wise dealing with the rate as they may deem right. 

KeOy^ Q.C. and Smirke, in Michaelmas Term last argued this case on behalf of 
the respondents ; and Sir W* JV. FoUettf Solicitor-General, for the appellants. At 
tlie suggestion of the Court, the case was again argued on a concilium in last Hilary 
Tefm, when 

Af.2>. //f//, Q.C. appeared for the appellants, and KeUt/, Q.C. for the respon- 
dents; but the main arguments are so fully discussed in the judgment of the 
Court, that it is not thought necessary to insert them here. 

Lord Dbnman, C. J. now delivered the judgment of the Court. — This appeal 
was argued in Michaelmas Term last, and again on a concilium, in Hilary 
Term, and was heard by all the members of the Court. Independently of cer- 
tain questions of detail, which we shall consider hereafter, the main argument 
of the appellants was directed to shew that this case was distinguishable from 
•that of the QMeen v. The London and South-Western Railway Company (1 Q. B. 
558) in many points which went to the principle of the judgment in that case ; but 
the respondents contended that the two cases were in principle the same, and 
that that judgment must govern the Court in this. It will be necessary, therefore 
in the first place, to compare the two cases; if they should be found to differ 
from each other in material circumstances, the principle of that decision may 
lead to a contrary one in this ; or, at all events, that decision will not be binding 
upon us in the present case ; if, on the other hand, they should be found to be 
sobstantially the same, in the present case it may be necessary to consider whether 
onr own reflection, or any thing urged in the course of the argument, should 
bduce the Court to depart from its former decision. In that case, the facts 
found were (and it must never be forgotten that the propriety of a poor-rate 
can only be determined by reference to the facts found to be m actual exist- 



Si IIAGISTRATES* CASES. 

ence), that the Company was in the tole and exclusive occupation of the railiray^ 
with the warehouses, stations, and landing-places ; and that being so, they were 
also solely and exclusively in the possession of the whole business of earners on 
that line; and although the South- Western Railway Act had, under certain 
limitations, made the raiiwajr a highway for all the liege subjects of the realm, 
giving them a right to use it as such, either as carriers, or as individuals tra«- 
yelling upon it, and had in that case provided for the payment by such persons 
of tolls to the Company, yet that no one having availed himself of this 
right, nor in truth, as we thought, having the power of doing so conveniently or 
effectually, no tolls were, in fact, eamecL To this then existing state of racts 
we applied the established principle of law, that the rate is to be on the occu- 
pier m respect to the beneficial nature of his occupation, and that, in estimating 
its amount, or, in other words, ascertaining how much net rent such an occu- 
pation might be expected to command, the parish officers have to consider, not drily 
and solely what would legally pass by the demise of it, but also what are the existing 
advantages, whether permanent or temporanr, wherever situated, howsoever arising or 
secured, which would reasonably enter into the consideration of parties negotiating for a 
tenancy as to the amount of the rent. We thought it also impossible in die considera- 
tion of that case to separate the three or four miles of railway in the respondent parish 
from the whole line running into many other parishes ; or the whole line from the ware- 
houses, stations, and landing-places ; or these, again, from the peculiar facilities and 
conveniences which a tenant would have as occupier of the buildings and lands for 
carrying on a lucrative business, if not an effective monopoly ; which, indeed, the pro- 
visions of the Act appeared to us to give to an occupier carrying on such trade. 
What, however, under the Act, was possible by law, or what, in point of fact, might 
take place in the future, however early, we considered immaterial to the principle, though 
very fit to be taken into the account in making calculations as to the quantum of the 
rate ; for, in principle, the parish officers are bound to look to the actual state and 
value of the land m occupation. In the case now under consideration, there are 
some facts entirely different from those just mentioned. The case finds that other 
parties, as well as the appellants, exercise the right of being carriers over the various 
parts of the railway, including that part of it within the respondent parish, providing 
for themselves, independently of the Company, subject, however, to its control under 
the Company's Act of Parliament, locomotive power, carriages, fuel, and all other 
things necessary and convenient for the conveyance of goods and passengers, and 
having separate stations adjoining the railway, together with the needful branches 
into, or communications with the railway : these parties make profits by their cany- 
ing trade, and they pay to the appellants the tolls that are fixed under the powers 
given by the said Act. Besides these, there is another class of carriers who also use the 
railway, and who hire from the appellants engines, stations, and landing-places, but 
find their own carriages ; these also make profits of their carrying trade, and they 
likewise pay to the appellants both tolls and a compensation for the use of tlie 
engines, stations, and other accommodations provided for them. The appellants 
themselves also use the line for the conveyance of goods and passengers ; and as they 
keep an account of the tolls which they receive from these two classes of carriers, in 
respect of the goods and passengers conveyed by them on the railway, so they keep 
an account, as is directed by the Act to be done, of the tolls which would have been 
produced by their own conveyance of goods and passengers on the line, if such con- 
veyance had been by other parties. These, with the compensation above mentioned, 
form the total produce of the whole line of the Company, which the Company, if not 
carriers, or which a lessee of the railway carrying on no traffic on it, would receive on 
the aggregate of this line, after all deductions are made ; and on this alone the Com- 
pany contend that the rate ought to be imposed. We understand, though it was not 
precisely so stated, the appellants to admit the principle of rating the whole line, and 
to arrive at the exact sum, at which they contend the rating in the respondent parish 
should be fixed, by a mileage division of the whole line— a principle convetiient in 
itself, and rightly adopted by consent. It b unnecessary after this statement to point 
out the difference in the facts between the two cases ; we cannot conceive how that 



srrnNGS after easter term, ism. 35 

diflerence bears on the principle on which this rate is imposed, or which governed 

tiie Coart in the former aecbion, which proceeded entirely on the existing state of 

Acts. Each of the two companies must be rated in respect of the occupation of the 

hod ; one of them derives no profit from that occupation, except by carrying on upon 

the land the business of conveying goods and passengers. The division of that profit 

mto toUs and fares we think merely nominal. The other, in addition to this before- 

menrioiied profitable occupation, also derives profit by allowing others to carry 

goods and passengers on the railway ; and that is properly called toll : still, in both 

the inquiry must be the same — what is the value of the occupation, from whatever 

lource deriyed, whatever the profits of trade ? In neither case can the profits of 

tiade be brought into the rate ; but if the ability to carry on a trade on land adds 

to the yalue of the land, that value cannot be excluded from the rate on the ground 

diat it is referable to the trade. Suppose a house occupied by a private family 

to-day, but, having great advantages by situation for the purposes of trade, is turned 

mto a shop to-morrow, and consequently lets for double or treble the former rent, 

would not the rating be properly increased in proportion ? Yet could it be objected 

dial to do 80 would be to rate the profits of trade ? Or, supposing an occupier to 

let oat different rooms in his house to other persons carrymg on the same trade 

ss himself — and that the effect of this mode of occupying would be still to increase 

die value of the house to let — would this at all vary the principle on which it 

wn rated^ though it might increase the quantum of the rate? Or, lastly, sup- 

pMDg» instead of this species of underletUng being at the option of the occupier, 

al fcnons using the same trade to be at liberty by some statute, under certain 

rotiittiooa, to carry it on in different rooms of the same house, paying a large com- 

MBBBtioii to the occupier, would not the principle of the rate be still the same ? 

Would it be material to inquire how the occupation became more valuable, except 

fir the purpose of making greater or less deductions, which the nature of the 

soeopation might make necessary? We may all remember when the large premises 

in Soho-square, now used as a bazaar, were occupied as private residences. The 

nreaent mode of occupation probably increases the rent ; but whether one man, 

omg the tenant alone, carried on the various trades now exercised there, or sold 

goo£ himself at part of the stands and let out the others, and so derived his 

pofit, a part directly from the trade, and part from the rent paid by the traders, or 

let out all the stands, and so derived no profit but from the rents paid by the 

tmders, the result would, in either case, be exactly the same; the overseers could 

oalj inquire what was the fair rateable value of the premises so occupied ; nor, as 

we have already said, could the inquiry be affected if the occupier of the bazaar 

held it under some statutable license, which compelled him to let out stands to 

sD persons paying a certain rent, and submitting to certain regulations. It is said 

that, in the cases supposed, all is referable to occupation under a lease, that conveys 

exclusive dominion; whence flow entirely the means of making the profits. We 

have* in truth, already given the answer to this ; but it would be plainer to observe 

that there is a fallacy in confounding that which the lease conveys a legal title to do 

with that which it gives the lessee the means of doing or enjoying. No two 

things can be more distinguishable ; and it is the latter which regulates the rent the 

teaaot will give, and not the former. Suppose, again, two estates of equal size 

and equal fertility; the one surrounded by excellent roads, with a canal near to 

it, and a large market; and the other without these advantages ; of course the 

lent, from which the rateable value is taken, would be larger in the one case than 

ID the other ; yet the tenant would take no more by a lease of the one than the 

other. A lease would give him no legal title whicn he had not before to use 

the roads, the canal, or the market. Or, suppose a more peculiar case. A, the 

owner and occupier of filackacre, and having the command of a stream of water, 

which he can turn over Whiteacre, wishes to rent it; to him it would be more 

nhiable than to other occupiers, because he can fertilize it at less expense than 

odiers; and he can give a larger rent than any other person; yet by a lease no 

more would pass to him than to any other person^ though he certainly ought to pay 

thither nue. 



36 UAQISTRJLTESf GA5E& 

Newt apply '.the priootf^of these .canes to the railtvmy- of. the. appeUants^ It it» 
tnie^ if they were to let it to tenants^ the lease would convey the land of the ratlwajt 
only, and give a title to the tolls only. The lessee would,, however, undoubtedly, 
consider the facilities and advantages which the oocupation as tenant would afibcOi 
htm for carrying on thelucrative trade of carrier; and in whatever proportion these 
considerations would increase his rent, in the same proportion, in tlie same amount^ 
after due allowance, his rate would be increased also. The two propositions ane 
equally true; that the rate is not to be imposed in respect of the profits of trade, and 
that it is to be imposed in respect of the value of the occupation ; and two propositions 
that are true and applicable to the same subject-matter cannot be inconsistent. And 
we think the respondents in the present case, by their scheme, have shewn they are 
not so. The gross yearly receipts of the Company, as occupiers of and carriers oa 
this railway, must at least include the subject-matter of the rate ; they have therefore 
taken a sum agreed to represent them, as the first pomt to start from. They then 
assume an amount of capital employed in the trade, and deduct from the former sum 
two per-centages on the latter for the interest on the capital, and the profits that 
ought to be made on it, and a third for the depreciation of stock beyond any usual 
and necessary annual repairs; fourthly, they deduct from the gross receipts the 
annual cost of conducting the trade; fifthly, the annual value of any land occupied 
hj stations, &c. rated elsewhere ; sixthly, a sum per mile for the reproduction of 
chairs, rails, sleepers, &c. These deductions, taken together, seem to us to include 
whatever is properly referable to the trade, and distinguishable from the increased 
value the trade gives to the land. We do not now speak of the amount allowed under 
each item, and we decline to give any opinion on this point, because it is more 
proper for the Sessions. Now, if these are the proper heads of deduction, then the 
residue must be the representative of the value of the occupation ; and this alone la 
brought into the rate — the profits of the trade are excluded. Accordingly, the 
Sessions have found, as an inference from the facts, that the residue is the sum which 
a tenant from year to year might reasonably be expected to give for the railway, and 
corporeal hereditaments now occupied by the Company in connection with the railway, 
exclusive of the occupation of the stations and other buildings separately rated, 
such tenant being assumed to have the same, and no other power of using the 
railway, with the same and no other advantages and privileges than the Company 
now possess. If these deductions exhaust that portion of the receipts referable to 
the trade, the inference of the Sessions is fair; if the advantages and privileges • 
which the Company possess, as occupiers, give an additional value to the occupation, 
their assumption is well founded ; and we agree with them in both. 

But the appellants, however, contend that, even if the principle of the rate be 
fair, certain reasonable deductions have been omitted. We have used the 
sufficiency of the deductions made as one mode of trying the principle, but. 
the. objection of the appellants now to be considered is ^ne of detail ; the only, 
instance, they specify and rely on, is, that an allowance ought to be made, and. 
has not been made, for good- will*. We presume by this it is meant, that a person 
bargaining with the Company to become a. yearly. tenant of the railroad, in thie 
expectation of succeeding to the trade, as the probable consequence of -sue* • 
ceeding to the occupation, would be properly called on to pay them something for 
the good-will of their trade, and this in the nature of an outgoing and deduction from 
the profits. This objection is capable of two answers ; the first and decisive one is, . 
that the purchase of the good^nwill implies that the trade is sold, that the Company 
are to be bound to surrender their, trade and the lease, and no longer to be carriers . 
on the line ; but the calculation of the Sessions proceeds on no such supposition ; all j 
those supposed advantages for carrying, on trade which the occupation gives, whatever 
they may be, the Company must, iuf that case necessarily surrender; but the moment; 
they leased the railway, they would become part of the public, and have the right tO" 
carry on their trade, retaining the whole of the good-wiU, and all those advantages-' 
which the statute has carefully reserved to the public^ Secondly, although the sup*- • 
position of a tenancy is to be made, yet what is incident to the tenancy-^the actual, 
terms and allowance-^must be determined, for the purpose of fixmg the amount ^» 



SITTINGS AFT£R £AST£R TERM, 18U. «7 

the rate by the actual state of things ; for this supposition of a tenancy is only the 
mode of ascertaining the existing value of the occupation to the existing occupier. 
Now, here, there is no tenancy; no good-will is in fact paid for; and we think, 
therefore, that no deduction ought in fact to be made in respect of its price. 

Again, it is contended that the existing facts in this case shew the unreasonable- 
ness of the rate : the carrying trade of the Company goes beyond their own line on 
the railways of other sets of proprietors ; but the receipts arising from this have been 
excluded from the rate ; and this, it is said, is inconsistent ; how can profits which 
the same engine earns by drawing goods over one mile be of a different character from 
those it earns in the same employ over the next mile? So far from there being any 
inconsistency in this, it is necessarily involved in the principle on which the rate 
rests ; that a distinction can be made, and has been made, is no slight proof of the 
soundness of that principle. The moment an engine leaves the railway of the Com- 
pany, and goes upon another line, what it earns ceases to have any connection with the 
occupation of that railway ; though of course it does increase the value of the occu- 
pation of the other line, and, in the shape of toil, would proportionably increase the 
rent which the occupier would pay ; but if that were allowed to swell the charge on the 
Company, it could only do so in respect to the profits of trade, and that our principle 
excludes. But it is said, lastly, that this principle works injustice between the Company 
and those other corporations or individuals who carry on this line with their own engines, 
file], and all things necessary, and yet have paid nothing to the poor-rate directly, and 
indirectly only in respect of their tolls, which would be supposed to be calculated, so as 
to bear their own rate ; whereas the Company pay both on the tolls and fares. Colour 
ii given to this objection by the fact, which seems to explain it, that the Company fill 
two characters, and the other parties one only ; but the proper answer is a denial of 
the fact : the Company do not pay, directly or indirectly, on their fares ; they pay 
only on the increased value of the occupation of the land, occasioned by whatever 
circuna stance. If a trader should underlet to a lodger a room in a house in which 
he drove the most profitable trade imaginable, such lodger would pay no poor-rate at 
all, but the trader would proportion the rate at which he would let the lodgings to 
the advantaffe such lodger derived from them ; and hence the total rent which the 
trader would pay, and the rate which would be imposed on him would be propor- 
tionally increased ; but could he complain of any injustice, or say that he carried on 
hb own trade to a disadvantage in the residue of the house, because, in his rate, the 
value of the trade so carried on in the other part of the house was also taken into 
account in fixing the quantum of the rate ? Yet those parties who carry on their 
trade on the Company's line are, in effect, in the nature of lodgers, or parties enjoy- 
ing a profitable easement on the line, and, from the consideration they pay, increas- 
iog its general value. In the examination which this case has compelled us to make, 
we have been necessarily led into a minute consideration of the principle on which 
the decision of the South-Western Railway case proceeded ; that decision was not 
directly impugned in the argument before us ; but the distinction of fact relied on 
•appeared to us, on examination, to be so unsubstantial, that it was necessary, in order 
to come to a decision against the rate, to examine the principle on which that deci- 
non was upheld. In a matter of such vast importance and apparent novelty, and 
where the decision of this Court cannot be reviewed in a Court of £rror, we were 
not uDwilliDg to enter again upon an examination of the question. On the whole, 
weare satisfied with the decision of the Sessions, which appears to us founded on a 
|U8t application of established, principles, in accordance with several decided cases, 
-and conflidiog with none ; our judgment, therefore, must be for the respondents. 

The rate accordingly confirmed. 



as IfAGISTRATES* CASES. 



Trinity Term, 1844. 



Q.B. Saturday^ May 22. 
The Queen v. The Guardians of the Poor of the City of Oxford. 

Poor-law gnardiaru acting under a local Act are not exempt from the authority of the Poor-Law 
CbmnUuioners, who have power to order how vaeaneiee are to be filled up among the ojficere of the 
local boarde, whoae regulationet if *>> eollieion with, or m eganon qf, the ordere qf the commie' 
eioners, are waste paper, 

A RULE had been obtained to shew cause why a writ of mandamus should not 
issue, directed to the guardians of the poor within the city of Oxford, com- 
manding them to appoint a proper person to be master of the workhouse, pursuant 
to two orders made by the Poor-Law Commissioners, of which the first, dated August 
16th, 184S, directed the guardians, *' as soon as may be requisite, and from time to 
time hereafter, upon the occurrence of any vacancy , to appoint all or any of the follow- 
ing officers; that is to say— a master of the workhouse, a matron, a chaplain, a school* 
master^ &c., for the efficient performance of the duties of the said several officers." 

The guardians of the City of Oxford Union have been in the habit, for some years 
past, on the 22nd September, of annually reappointing a Mr. Charles Price as the 
master of the workhouse. On the 21st of September last, and therefore one day 
before tlie last annual appointment of Price had expired, the guardians ^who had 
previously received the order of August 16th) passed the following resolution : — 
<< Ordered, that the officers of this establishment are officers during pleasure, and 
that no appointment shall for the future take place as an annual election." No 
election took place on the following day, nor afterwards, Mr. Price retaining office. 
On the 11th November afterwards, the Poor-Law Commissioners '* issue another 
order, under their hands and seals, which was duly sent to the said guardians, and 
was duly received by them on the 12th of November now last past ; and the Poor- 
Law Commissioners did, by the said last-mentioned order, order and direct the said 
guardians of the poor, within one month of the date thereof, to appoint a fit and 
proper person to be the master of the said workhouse." This order was read at the 
board, and disregarded, and the guardians neither appointed, nor did they intend to 
appoint, a master of the workhouse, in pursuance of the order of the Poor-Law 
Commissioners. 

Erie, Q. C. shewed cause. — There is no vacancy, it is therefore unnecessary to 
proceed to an election. The guardians do not wish to remove Mr. Price, neither do 
the Poor-Law Commissioners ; but the latter body insists that there be an annual 
election, and contends that the 46th section of the 4& 5 Wm.4, c 76, gives to it the 
power of so insisting. [Coleridge, J.— Have they said that the master shall hold 
fais office for one year ?] They say that upon a vacancy occurring, the master 
shall be appointed according to their regulations. The guardians, on the other hand, 
aay, that before any vacancy could occur they had declared that there should not be 
any annual holding of any office, and therefore that there has not been a vacancy. 
[Thesiger, S. G. — ^The order of the commissioners is, that all officers shall hold 
their appointments during good behaviour.] Yes; but before a vacancy, the 
guardians had resolved that all offices should be held during pleasure. [Cole- 
ridge, J. — If you say he shall bold during pleasure, he having previously held on 
some other term, is not that a new appointment ? And if it is a new appointment, 
it is a violation of the order of the commissioners. By virtue of his appointment he 
was to hold the office till the 30th of September.] There has not been a vacancy : 
there has not been a moment at which the man was out of office. [Coleridge, J. — 
Virtually, he resigned it by taking it on other terms. Suppose that instead of the 
same man continuing in office on altered terms, another had come in.] The pundum 
iemporu would have been ascertainable. [Coleridge, J.— So it is now.] Our 
point is, that he never was out. [Coleridoe, J. — Can you distinguish this firom the 
Bridgewater case, in which the claim to compensation was Yaried by the change in 



TRINITY TERM, 18M. 8» 

the tenure of office, from one for life to one during pleasure?] [Lord Denmak, 
C. J. — M J difliculty is to find a vacancy here ; but I should think this resolution 
of the guardians, in collision with one by the Poor-Law Commissioners, is mere waste 
paper.] We say we have prevented the occurrence of a vacancy. [Thesiger, — 
We say that, under the local Act, the guardians have not the power of appointing 
officers during pleasure; and next, that their resolution of the 22nd September 
is good for nothing, because it has not been sanctioned by the Poor-Law Com- 
missioners under the 4 & 5 Wm. 4, c. 76.] It is clear from s. 27 of the local 
Act, that the guardians have a discretionary power to regulate the mode of appoint- 
ing their officers, and to change the regulations if they please. With regard to the 
22nd section of 4 & 5 Wm. 4, c. 76, the answer is, that the appointment of officers 
has nothing to do with the *' relief of the poor." The tenure of office cannot in any 
way affect the manner in which relief is administered. [Thesiger. — We say that the 
local Act relates to ** the relief of the poor" within the 22nd section of the Poor-Law 
Amendment Act.] 

Thomas (with £r/tf).— -The local Act was passed in 1771. The first section 
forms certain parishes into a union, and that has never been interfered with by the 
Poor-Law Commissioners till now. To give themselves authority for this interference, 
thej should have interfered before. The Poor-Law Commissioners have not power to 
titer the constitution of any board of guardians erected by a local Act, without the 
consent and concurrence of at least two-thirds of those guardians, as appears from 
lection 32 of the Poor-Law Amendment Act. Nothing of the kind has been done* 
There is an end of every local Act if the Poor-Law Commissioners, by a mere order, 
Bsy alter the prescribed mode in which the functions conferred by it are to be 
exercised. 

Thesiger^ S. G. and Tomlinson, contr^, were not called on. 

Lord Denman, C. J. — There is no doubt about this case. Here was a vacancy 
which could only be filled up according to the order of the Poor-Law Commissioners, 
if they had the right to make that order. We are of opinion that they had ; that the 
r^;ulation of the guardians in collision with it was useless ; and, therefore, that the 
vacancy could not have been filled up by any one appointed under that regulation. 

Pattsson, J. — 1 am of the same opinion. It is clear that guardians acting under 
a local Act are not exempt from the authority of the Poor-Law Commissioners ; and 
it is equally clear that the regulation for preventing a vacancy was an attempt to 
evade Uie authority of the Poor-Law Commissioners. 

Williams, J.— ll am of the same opinion. The Commissioners have not attempted 
to interfere with the constitution of the guardians as determined by the local Act. 

Coleridge, J. — I am of the same opinion. Mr. Erie says that there is no 
vacancy; but that is not so, unless the order of the 21st September be valid, fiut 
it is not valid, because it has not been confirmed by the Poor-Law Commissioners 
imder the 22nd section of the Poor-Law Amendment Act; for the local Act relates 
to <* the relief of the poor." If the order of the 21st September be invalid, then 
there was a vacancy on the 29th of that month. 

Rule absolute. 



Q.B. Friday, May 24. 
The Queen v. Tollemache. 

A mandamus will go to order the steward qf a manor to enter a certificate of the enfranchisement of 
copyhold land hought by poor-law guardians^ under 7 Wm, i Sf I Vict, c, 50, tq}on payment qf 
the dsffierenee between the copyhold and freehold values and no further notice to the lord (ff the 
or need be given than that qf the contract and valuation. 



A RULE had been obtained to shew cause why a writ of mandamus should not issue, 
commanding Mr.Tollemache, the steward of the manor court of Staines, in the 
eoon^ of Middlesex, to make entry in the rolls of the manor of the enfranchisement 



^ MAGISTRATES* ' CASES. 

of a certain part of the manorial land which had been purchased by the poor-law 
guardians of the Staines Union under the authority of the Po«r-Law Commissioners, 
and to furnish a copy of such entry to the said guardians^ according to the provisions 
of 7 Wm. 4* & 1 Vict. c. 50. The statute enacts (s. 2), that where any contract shall 
be entered into for the purposes of the Poor-Law, reacting lands, &c, of copyhold 
tenure, ^* it shall be lawful for the Poor-Law Commissioners to direct that the 
difference in value of such lands, &c. as of copyhold or customary tenure, and the^f^ 
hold or fee-simple thereof, including therein the value of any fine, heriot, &c./' shall 
be ascertained as they think fit, and that such value shall be paid to or invested in 
the name of the lord of the manor ; '* and upon and from the making of such pay- 
ment or investment, such lands, &c. shall thenceforth be deemed enfranchised, 
and for ever discharged from every fine," &c. and become of the tenure of free 
and common socage. It is also provided that if the lord shall be dissatisfied with 
such valuation, and shall, '^ within seven days after a tender made to him of the 
amount thereof,'* or after notice of its being ready to be paid, send notice by post to 
the Poor* Law Commissioners of such dissatisfaction, another valuation shall be there* 
upon made. The third section requires the steward of the manor, on receiving a certifi- 
cate of such valuation and enfranchisement, to enter it on the rolls of the manor and 
" to furnish a copy of such entry, written on parchment, to the Poor-Law Commis- 
sioners, or to such person or persons as they may direct." The affidavits proved that 
these provisions had been all complied with on the part of the guardians. The lands 
were conveyed to a Mr. Sullivan, in trust for the guardians. The value of the 
difference had been ascertained ; the amount had been tendered ; but the lord of 
the manor refused to receive it, and the steward refused to enter the certificate. 

Dramwell shewed cause. — If the entry be once made, how can the lord obtain the 
money difference between the two values ? [Coleridge, J. — It is to be paid to 
or invested for him.] Yes ; but this is not done : what means has the lord of 
getting it, when the enfranchisement has been once registered } [Lord Denmak, 
C. J. — This cannot be the intention of the Act. You want the money, and may 
have it. We will order that it be paid to you.] The name of Mr. Sullivan is on the 
roll as tenant of this land. There is no notice to the lord of the conveyance to ap- 
prize him of his interest in it. There should be a common law conveyance from 
the lord to the guardians. How can the lord know in whom the estate is? The 
guardians ought themselves to have been admitted, and to have paid their fine on 
admittance. The entry on the certificate merely states that the land was enfranchised 
to the guardians of Staines, only stating that they contracted with some one^ without 
naming whom. The land is particularized, but there is still a gap. It is an attempt 
to vest the property in the guardians without the payment of the fine to the land- 
lord. The result would be that he would lose his fine. [Lord Denman^ C. J.*- 
He might never have had a fine at all, but for this Act.] 

Kelly, Q. C. (with whom was Cleasby), contr^ — The Act merely substitutes the 
estimate of difference of value for the more circuitous proceeding of fine and surrender. 
On payment of it, the entry is made by the steward on the rolls. [Patteson, J.— 
And afterwards?] The lord having received the difference, is satisfied, and has 
nothing more to do with it. [Lord Denman, C. J. — He does not state here that he 
has any difficulty.] He gives an absolute refusal to enter the certificate. 

Bramxvell. — No fee was offered, not even for the parchment on which the Act 
directs the copy of entry to be inscribed. There was no sufficient notice to let the 
lord in to dispute the vaJ nation ; nor does it shew how the guardians are entitled. 

Per Curiam. — We think that the guardians of the Staines Union are clearly 
entitled to a mandamus. The statute gives them the right to purchase and enfran- 
chise copyhold property in this manner without the payment of any fine whatever^ 
which is m fact calculated and included in the difference in value between the copy- 
.hold and the freehold tenure, of which the Act provides the payment. The conveyance 
takes nlace according to the Act. The rule must be made absdlute upon paynent of 
the vauiaUoxi. Bule ubtdtUe aocori$$^y. 



TRTNITT term; 18U. 4r 

Q.B. Wednesday, May 28. 
The Queen v. The Ink abitakts 07 Shipston-upon-Stour. 

TUtapy qfiie egammaiion vpon which a patter U removed^ tmd which it tUreeted by the A 8f 5 
Wm, 4, c. 76» s, 79» to be smi with the order of removal to the receiving parisht should be am 
egaet copy of the whole examination, including caption and jurat: and if it doeenot appear upon 
ike face qf the examinationa sent that they have been taken brfore the two Justices who made the 
mrdiri tilde C&urt will quash the order which is founded upon them. The authority to take the 
erm m i m adom mmtt appear di»ti$tetly on the face of themt the Court will not iitfer it from any 
tirewmaiamnu whatever, 

M order qf reautval adjudged the settlement ^f the pauper and her illegitimate child, aged about 
seven weeitfin the parish qf A; to this there was a ground of appeal — '* nat the order as regards 
the eaid ekUd is bad and erroneous in this, that it adjudicates as to his settlement in the said 
panak of A absalaiely, whereas it should have adjudged and ordered that, as an illegitimate child f 
hetkamkLham and follow the settlement qf hie mother until he should attain the age of sixteen 
oaly," Held^ thai the order was sufficient, inasmuch as it adjudged the existing settlement of the 
chad ai ike date of the order, 

TBs douri does not feel bound to comply with the condition that in a certain event the case shall be 
saai betei to the Sessions to be reheard, 

/VN appeal against an order of two justices for the removal of Sarah Sutton^ 
Vr ' single woman, and her illegitimate child, William, aged about seven weeks, 
fnm the parish of Shipston-upon-Stour^ in the county of Worcester, to the parish 
of Atfaerstone-upon-Stour, in the county of Warwick^ the Court of Quarter Sea- 
BOQi, holden in and for the county of Worcester, on the 26th day of June, IS^S, 
^BsAed the said order, subject to the opinion of this Courty upon the following 
€ae. — 

By the order^ bearing date the Slst day of December, A.D. 1842, Wm. Dickins, 
esq,, and H. Townsend, clerk, two of her Majesty's justices, &c., whose namea 
were thereunto set and seals affixed, upon exammation of the premises upon oath 
and other circumstances, adjudged the place of the last legal settlement of Sarah 
Sutton, single woman, and her illegitimate child, William, to be in the parish of 
Atherstone-upon-Stour, in the county of Warwick. The examinations sent to the 
appdlaot parish with the said order of removal were, so far as is material to the 
decision of the Court, as follows : — 

«* The examination of Sarah Sutton (the pauper), taken upon oath before us, two 
of her Majesty's justices of the peace in and for the county of Worcester, who upon 
her. oath saith, * lam about twenty-four years of age, and have not, to the best of 
my knowledge and belief, gained any settlement in my own right. About seven 
weeks ago I was delivered of a male bastard child in the parish of Shipston^upon- 
Stour, which has since been christened William.' 

"The mark of 
X 
•* Taken and sworn before us, " Sarah Sutton.** 

this Slst of December, 1842, 

'* William Dickins, . 
« H. Townsend." 

Then immediately followed, upon the same sheet of paper; the examination of 
Attience Randall, the wife of Thomas Randall, of Shipston-'upon-Stour, in the 
eoonfiy of Worcester, labourer, taken this Slst day of December, 1842, who upon 
her orar satdi, *that the pauper^ Sarah Sutton, is my daughter, that she was bom 
•Ithe parish of Atherstone*u|)on-Stottr, in the comity of Warwick, and is about the 
age of twenty«^oiir years, and is illegitimate, having faieen bom before I was married.' 

«' The mark of 
X 
^TUeen^and swom- this Slst day ** Patience Randall." 

of Deoembleri 1842^ before us, 

«* William- Dickins, 
'•Hi Townsend." 



42 IIAGISTRATES* CASES. 

These two examinations 611ed the second and third pages of the sheet of paper, 
the first page of which was occupied by the notice gf chargeability and order of 
removal. 

The whole was duly sent by the OYcrseers of the respondent to the overseers of 
the appellant parish. There were twelve grounds of appeal, but those upon which 
the Court of Quarter Sessions grounded their decision were as follows : — Ist, That 
the said examinations are defective and insufficient in this, that it is nowhere therein 
alleged, nor does it appear, that the said Sarah Sutton is not a widow, or that she 
never acquired any settlement by marriage. 2nd, That the examination of the said S. 
Sutton contains no legal evidence shewing that she, or her said child, are, or either of 
them is, settled in our said parish of Atherstone-upon-Stour. 3rd, That it does not 
appear in and by the said examinations, or any part thereof, that the examination of 
the said Patience Randall was taken before two of her Majesty's justices of the 
peace of the county of Worcester, nor that she was examined before two justices of 
the peace of the county of Worcester, touching the place of the legal settlement o€ 
the said S. Sutton, or before the justices who signed the said order of removal. 4th, 
That the said order of removal, as regards the said William, is bad and erroneous ia 
this, that it adjudicates as to his settlement in our said parish of Atherstone-upon- 
Stour absolutely, whereas it should have adjudged and ordered that, as an illegiti- 
mate child, he should have and follow the settlement of his mother, the said Sarab 
Sutton, until he should attain the age of sixteen only. 

Upon the appeal being called on for hearing, the counsel for the appellants con- 
tended that the order ought to be quashed upon the objections contained in the 
grounds of appeal above set forth ; and the Court, after argument, were of that 
opinion and quashed the same accordingly. 

If the Court of Queen's Bench shall be of opinion that the objections stated in 
either of the first three grounds of appeal are fatal to the sufficiency of the examina- 
tions, then the order of the Quarter Sessions to be confirmed, or if they shall be 
of opinion that the order is bad only upon the objections raised in the fourth ground 
of appeal above stated, then the said order is to be quashed so far as regards the 
said William, otherwise the case to be sent back to the Sessions to be heard upon 
the merits. 

Lord Denman, C.J. — I don't understand that we are bound to comply with that 
condition of sending back a case to the Sessions because the parties choose to in- 
sert it. 

S^e and Beadon^ in support of the order of Sessions. — That entry was made at 
the time ; because there was an ofier made to the other side that the case should be 
heard on the merits ; which they declined. The Sessions have decided this case 
upon the objections contained in the grounds of appeal ; and they are the proper 
judges of the sufficiency both of the examination and the grounds of appeal. {Reg* 
V. iridgetoater^ 10 Ad. & Ell. 693.) Here they have decided correctly ; the first 
objection to the examinations is that they do not negative the fact of any settlement 
having been gained by the pauper by marriage ; the words are, '* I have not, to the 
best of my knowledge and belief, gained any settlement in my own right ;" but the 
pauper might have gained a settlement in right of her husband, and that ought to 
have been negatived. The examinations do negative every other settlement ; and 
by so doing suggest this objection. [Lord Denman, CJ. — The order removes 
Sarah Sutton, *< single woman, and her illegitimate child."] The Sessions have* 
acted upon the case 'of Reg. v. Wymondham (2 Q. B. 541), in which this Court held 
that the word ** single*' was not equivalent to '^ never married." The second objec- 
tion is, that the examination of Patience Randall does not appear to have been takea 
before any two justices, or before the justices who signed the order of removal. That 
statement is found at the head of Sarah Sutton's examination, but not in any part of 
the examination of Patience Randall, and there is nothing directly to connect the 
two examinations. [Coleridge, J. — The date of both is the same ; and the names 
attached to the jurat of each are the same.] They are also written on the same 
paper ; but these circumstances can do no more than raise an inference on the subject ; 
and as these examinations are to be construed as strictly as the order, it ought to 



TRINITY TERM, 18U. 43 

tppesr poritivelj that the witnesses were examined before the magistrates who made 
the order. This goes to their jurisdiction ; and Rex v. The InhahUanU tf Stepney 
(Burr. Sess. Cas. 23) is an authority in point. There the order was directed to the 
overseers of a parish in the county of Middlesex, and to the overseers of a parish in 
Buckinghamshire; and it described the justices as justices of the peace in and for the 
coun^ aforesaid, without saying which ; and the Court held it to be bad for uncer- 
tainty. In Reg. y. Silkstone (2 Q.B. 620; 2 Gale 8c Dav.S96), the jurat of the exami. 
nation was in the singular number— '< sworn before me^^' and " I certify/' but it wa^ 
signed by two magistrates ; and the Court thought that they could not say that that 
exammation purported to be taken by one only ; but even in that case, Mr. Justice 
Williams said, ** I come with great reluctance to the same conclusion as the rest of 
the Court. I much doubt the legality or utility of supporting this examination. 
When it is so easy to be correct, why should we sustam that which has become 
&Qlty bj mere nmigence and blunder 7* The third objection is, that the order ad« 
mdioites the settlement of the illegitimate child absolutely ; whereas it ought to 
have followed the words of the 71st sect, of 4 & 5 Will. 4, c. 76. Previously to the 
passing of that Act, all bastards were settled where they were bom ; but the section 
above mentioned altered the law in that respect, and provided that ** every child which 
ihoald be bom a bastard after the passing of that Act (14 Aug. 1834) should have 
and follow the settlement of the mother of such child, until such child should attain 
the age of sixteen, or should acquire a settlement in its own right.'* The proper 
mode of constraing that clause is to apply the latter part of it, which fixes the 
period of limitation, to both verbs *' have and ** follow/* and not to the latter only ; 
then the effect of it is, that the child shall have its mother's settlement until it attains 
tbe age of sixteen or acquires a settlement in its own right, and no longer ; at the 
sge of sixteen the child ceases to have its mother's settlement, and acquires a settle- 
ment in the place of its birth ; and the order ought to have adjudicated the settle- 
ment of the child with that limitation. In its present form it is an absolute adjudi- 
cation of the settlement, which cannot hereaflier be disputed by the appellant parish. 
[CoLBRiDOE, J. — Could the magistrates do more than say what the settlement was at 
the time of making their order ?] They should have shewn the limited nature of the 
settlement by an adjudication following the words of the statute* [Coleridge, J.— 
How could they have done it ? They could not say that the child was settled in the 
parish of Atherstone until he attained the age of sixteen, or acquired a settlement 
m his own right, because the child until that age is to follow the settlement of the 
mother, and she might go away the next day.] A form of order founded upon this 
clause has been promulgated by the Poor-Law Commissioners, which very closely 
follows the words of the Act. (a) 

Whitmore and Huddlestone^ contr^. — The third objection taken to the order of 
removal cannot be supported. [Lord Denman, CJ, — ^We do not think it 
necessary to trouble you as to the third point.] Then as to the first objec- 
tion^ in order to remove upon one settlement, it is not necessary to negative 
every other settlement which the pauper may by possibility have gained ; in many 
cases that would be impossible ; all that is required on the part of the removing 
parish is, that it should ascertain a settlement, and prove it by proper evidence. That 
IS done here. [Coleridge, J.— Do you^shew a complete birth-settlement unless 
yon negative a marriage ; because if the pauper were married, then her birth-settle- 
ment is lost, and she acquires that of her husband.] The marriage should be shewn 
on the other side ; it is not necessary to negative it in the first instance. [Cole- 
11DGK9 J. — You must do so in the case of a settlement by hiring and service.] That 
is so, because in that case it is a part of the statutory description of the settlement 
itaein The stotuto creating the settlement expressly limits it to ** unmarried per- 
sona, not having child or diildren ;*' but before the passing of the Poor-Law Amend- 

(a) llr. Gtel, in his Book of Precedentf , p. 349, Coleridge, J. // it remarkabU fkat this ol^ectiim 
t^ a ftmn adjndslnr— '* That the place of legal thould evtr have been taken ; the aimpU answer to it 
wttWrnrrt of the tSdhutud chfld, iinUl It ihaU it that the eettlement of the chad, whilst U lasts, is 



maka tke age of eizteea yeut, it the eaid parish, as ** absolute *' as that qf the mother; but qf course, 
Wi]« Hs said mother's last legal settlesBent ;" hut like every other settlement, U u UabU to be changed 
tkjs Is ckaily opc& to ths dgtctUm stated above hj bjfa ehtmge qf eireumstanees.-^B, 



4i. MAGISTRATES? GASES. 

mant Act, every bastard child acquired a settlement absolutely in. the parish in which, 
it was bom. The two cases are perfectly distinct In Rex v. Whidey. (2 Bott's P.L. IS}^ , 
it was held that the place of birth was prim&Jacie evidence of the place.of settle*^ 
menty although it appeared that the father of the pauper was still living, and hacL^ 
served two years in a different parish. The case of Rex^v* St. Marvy LdcetUr 
(S Ad. & £11. G44; 5 Nev. & M. 215), is an equally strong authority^ Tliere Lord . 
Dennian says, the respondents ^' rely upon the primdjacie case of the birth ; . that is > 
good till a settlement by parentage be shewn.'* Supposing it to have been stated as . 
a fact that the pauper had never been married, would a. mere traverse of that state* 
ment in the grounds of appeal have been sufficient to let in evidence of any other 
settlement ? Certainly not ; and if not, the statement must be immaterial. As to « 
the second objection, it is admitted that the. examinations ought in fact to be takea 
before two magistrates, and the two magistrates who made the order; but it is not, 
necessary that that should appear upon the face of the examinations sent to the * 
appellant parish ; the statute only requires that a copy of the examinations on which 
the order of removal is made shall be sent to the appellants, the object being to give - 
them information as to the real grounds of the removal^ and that object would be.. 
fully answered if the headings and jurats were omitted altogether. [Coleridge, J.— 
The objection is taken to the examinations themselves, not to the copy.] No 1 the 
objection is to the said examinations, and the said examinations are those sent by. 
the respondents to the appellants, which may be only copies. [Coleridge, J.— 
Surely we must take them as being identical.] Here, however, it sufficiently appears 
that both the examinations were taken before two justices of the peace, and before . 
the same two justices who made the order. The identity of names and of place is 
primd facie ey'ideuce of identity of persons; and that primdjacie case is strongly 
corroborated by these two circumstances — Ist, that the examinations were sent 
together with the order, all being written on the same piece of paper; and 2nd, that, 
in the examination of Patience Randall distinct mention is made of '^ the pauper, , 
Sarah Sutton." 

Lord Denman, C. J. — It seems to me that there is more than there would at first . 
appear to be, in the objection which has been raised to the mode of taking the 
examination. The case states the order of the two justices as being made '* upon, 
examination of the premises on oath and other circumstances," and then says that . 
the examinations sent to the appellants were, so far as is material to the decision of 
the Court, as follows : — " The examination of Sarah Sutton (the pauper), taken upon 
oath before us, two of her Majesty's lustices of the peace in and for the county of. 
Worcester, who, upon her oath, saith,' &c. Then, at the conclusion, <* Taken and 
sworn before us, this 3 1st of December, 1842. William Dickins, H. Townsend." 
Then immediately follows, upon the same sheet of paper, the examination of Patience 
Randall, the wife of Thomas Randall, &c, « taken tliis 31st day of December, 1842,, 
who," &C., and concluding, '< Taken and sworn this 31st day of December, 1842». 
before us, William Dickins, H. Townsend/' It neither states in the examination 
Itself, nor in the jurat, that it is taken before persons having authority to administer 
an oath : but then it is said to be unnecessary to set out any such particulars, because, 
all that the Act requires is, that a copy, of the examinations should be sent; and 
that if a copy were sent, giving the whole substance of the examination, that would 
be a compliance with the Act; however that may be, I think it is much safer and., 
better for parties to send an exact copy of the whole examinations (a); and, at all ^ 
events, we cannot here suppose that the respondents would set out any thing less . 
perfect than the real document which they purport to set out; and we must take the .: 
examinations sent to the appellants to be a. true and perfect copy of those on whicfai; 
the order of removal proceeded. Then the first question is-^if Uiis last examinatioo. . 
stood alone, could it for a moment be argued that it was sufficient?, and in mjr^ 

(a) See Reg. ▼. The Inhahitanis qf Outwett (9 on the oecation of making tlie order, the whole of 

AA. &EU. 836 ; 1 Per. & D. 6lO),irhere Coleridge, wideh flhoald)>6 sent, that the pariah, whidi is or^ 

J. says : " The provinooa of the statate in thU dered to receire the pauper, mar ^"^^ *i^ oppor- - 

ittpect hare prored Tery benefidal, and on^^t to be tnnitf of coniidAring whether that order shoold bs 

supported in their futteei extati. The word * exa* reiiited or gahmitted to.*'— B. 
mmation' meant tho entire body of eride&oe takea 



TRINITY TERM/ 1844. 45 

opinion it does stand alone ; and» standing alone» it appears to be taken, not before 
tvo jostioes of the peace, but before two individuals, who are not shewn to have any 
authority whatever. Here, certainly^ the two examinations are on the same paper, 
and the names and the dates are the same ; and it is urged on the part of the 
respondents, that that is sufficient evidence to shew that the persons, before whom 
the last examination was taken, were the very same persons before whom the first 
examination was taken ; but I do not think that we are at liberty to collect from any 
drcumstances whatever, that persons administering an oath have authority to do so. 
The order of Sessions must, therefore, on this ground, be confirmed. 

Patt£son, J. — What is sent to the appellants must, at all events, be taken to be 
i true copy of the examinations. Now supposing the Jurat were struck out altogether, 
wodd not that raise precisely the same objection, only m a more forcible manner ? Here 
there is, in the first place, the examination of Sarah Sutton, << taken before us, two of 
her Majesty's justices of the peace," &c. ; then comes the second examination, but 
before whom taken does not at all appear. You cannot leave out the beginning of 
that examination, because that is the only place where the name of the witness 
sppears, except where it is written by some other person opposite to her mark ; and 
yoQ cannot help that examination by reference to the former one. One test is, 
whether the witness could be indicted for perjury upon this examination ; and I think 
diat she could not. If we were to allow this examination because it is written on the 
ome paper with the other, and bears the same signatures and date, the next thing we 
dwnld be called upon to do, would be to allow two affidavits, only one of which pur- 
ported to be taken '• before me, a commissioner,** &c., because they were both written 
00 the same sheet of paper. I do not know to what extent it n)ight be carried, if we 
were once to permit a defective examination or affidavit to be cured by taking it in 
caonection with some other examination to which it contained no express reference. 

Williams, J. — I was at first struck by the remark made by Mr. Whitmore, that 
the Act of Parliament only required a copy of the examinations to be sent ; but I 
think the statement of the case here precludes the respondents from taking that 
objection ; for it specifies the examinations, and raises a reasonable inference that all 
tfiat could be sent was sent to the appellants. If that were so, then it becomes a 
question whether the very particularity of the first examination does not aficct the 
vaUdity of the second. In the first examination, all those particulars are studiously set 
oot which would be necessary in order to found upon that examination an indictment 
for perjury ; the other is totally destitute of them ; and, therefore, the inference 
would rather be that, as to the latter, they were in fact wanting. 

Coleridge, J. — I have come to the same opinion after a good deal of hesitation 
and regret ; but upon the whole, I do now think that it is the only safe conclusion at 
wliidi we could arrive. It seems to me, in the first place, that we must treat these 
docmneDts as the very examinations themselves ; the objection is taken to the exam« 
inations; and the appellants may well do so without seeing them, as the Act requires 
a copy to be sent to them. Mr. Beadon has said that the examinations are to be 
ooostnied as strictly as the order itself; but I do not quite agree in that observation; 
because, as to the body of the examinations, the magistrates are the proper judges of 
its meaning, and this Court will not interfere unless they have refused to hear and 
decide the matter ; but as to the order, strictly speaking, the magistrates have not 
Ae same power; we determine what is the proper construction of the order: it would 
be more correct, therefore, to say, that as to all that gives the magistrates jurisdxc- 
tioD, that role will apply. If Randall's were the only examination here, it could not 
be conteoded for a moment that it was sufficient; but, then, it is said that it is 
lendered sufficient' by reference to the other examination, because the same names 
and date appear in both, and both are written on the same piece of paper. These 
drc u m stan ces may make this a hard decision ; but I agree with my brother Fatteson, 
Alt if we were to allow this, we should not know where to stop! This case is very near 
the diwiding line ; and if a similar case were to occur in which evidence of the hand- 
writi^ was ofoed, we might be still more inclined to jrietd ; but the qaestion'isy 
'itt we to aOow Ibis defisct to be supplied ' by any- evidence ; and II ' think * we 
AoaUiiot. Ordtr tf Stttum cqi^irmsd. 



46 MAGISTRATES' CASES. 

The Queen v. The Inhabitants of Farthinohoe. 

l/pon appeal againtt an order qf removal^ a certificate of chargeability, under 5^6 Vict, c, 57» t. 
17, was produced, which purported to be ** given under the seal qf the board qf guardians," and 
to be signed by the presiding chairman and countersigned by the clerk to the board ; but no evidence 
was given that it was in fact sealed with the seal qf the board of guardians, and upon a ground 
vf appeal stated in the following terms — '* That it does not appear by any legal evidence that the 
'Certificate of chargeability, dated, 8fc., was signed and sealed, as required by the statute in that 
case made and provided, by the presiding chairman of the board qf guardians qf the B. union or 
of a district board;** it was held, that the objection was fatal to the order, and that it was f»^. 
ciently pointed out in the above ground qf appeal; Coleridge, J. dubitante as to the sufficiency qf 
the ground of appeal. 

UPON appeal against an order of two justices, bearing date Slst day of March, 
A.D. 1843, for the removal of Wm. Whitmill, Mary, his wife, and their three 
children, George, aged about seven years, Hannah, aged about five years, and Eliza- 
beth, aged about nine months, from the township of Northnewington, in the county 
of Oxford, to the parish of Farthinghoe, in the county of Northampton, the Court of 
Quarter Sessions for the county of Oxford, at the following Midsummer SeasionSi 
confirmed the order, subject to the opinion of this Court upon the following case. 

The evidence and examinations, on which the original order was made, were as fol- 
lows : — <* William Whitmill, the pauper, upon his oath saith, * I am now about thirty- 
three years of age. About eight years ago I was married to my present wife, Mary, 
at the parish church of Broughton, in the county of Oxford. I have three children 
horn in lawful wedlock. For twelve weeks past I and my wife and family have been 
in the workhouse of the Banbury Union ; before that time I was residing in the 
township of Northnewington, in the said county of Oxford. I have heard the certifi- 
cate now produced and read by Mr. Geo. Moore, derk to the guardians of the Ban- 
bury Union, and I am the same Wm. Whitmill therein mentioned.' " [Then follows 
the examination of Richard Whitmill, the father of the pauper, proving a birth-settle- 
ment of the pauper in the parish of Farthinghoe.] Certificate of chargeability >— 

** Banbury Union. Weekly meeting, the 30th day of March, 1843 The guardians of 

the poor of the Banbury Union, in the counties of Oxford, Northampton, Gloucester, 
and Warwick, do hereby certify that Wm. Whitmill and Mary his wife, and their 
three children, George, Hanndfi, and Elizabeth, now residing at the workhouse of 
the said union, in the township of Neithrop, in the county of Oxford, are now, and 
have been for the space of twelve weeks past, chargeable to the township of North- 
newington, in the county of Oxford, and within the union aforesaid. Given under 
the seal of the board of guardians of the Banbury Union aforesaid, at a meeting of 
the guardians aforesaid, held on the day and year aforesaid. 

'* Ht. Robt. Bratne, Presiding Chairman. (L.S.) 
<* G. MooRE, Clerk to the Board of Guardians of 
the Banbury Union." 
*' George Moore deposeth, that he was present at a meeting of the guardians 
of the poor of the Banbury Union, in the counties of Oxford, &c., held at the 
workhouse of the said union, and did see Hy. Robt. Brayne, gentleman, the presiding 
chairman of the said meeting, sign the above-written certificate ; and that he did also, 
at the same meeting, as the clerk to the board of guardians of the said union, counter- 
sign the said certificate ; and further, that the names Hy. Robt. Brayne and G» 
Moore, set and subscribed to the said certificate, are of the proper hands-writing of 
the said Hy. Robt Brayne and of this deponent respectively. ' The material grounds 
of appeal were — First, That it does not appear, by any legal evidence, that the cer- 
tificate of chargeability, dated the 30th day of March, 1843, and upon which the said 
order was made, was signed and sealed, as required bv the statute in that case made 
and provided, by the presiding chairman of the board of guardians of the Banbury 
Union, or of a district board. Secondly, That the order of removal was made with- 
out any legal evidence that the said Wm. Whitmill, with his wife and family, were, 
at the date of the same, actually chargeable to the township of Northnewington, and 
without any proof that they were then inhabiting in the said township. Thirdly, 
That the said Wm. Whitmill was not in fact, nor were his wife and family, at the 
date of the said order, inhabiting in the said township. Fourthly, That it is not 



TRINITY T£RM» 18U. 47 

stated in or by any of the examinations taken before the said removing justices* nor 
was it made to appear to them, that the said Wm. Whitmill had not done any act 
since his birth whereby he may have gained a legal settlement ; and, for aught that 
appears in the said examinations, or otherwise, the said Wm. Whitmill has gained a 
l^al settlement in his own right. 

Upon the hearing, ailer the examinations and grounds of appeal had been read, it 
was objected by the counsel for the respondents, that the first ground of appeal was 
bad, inasmuch as the statute does not require the certificate of chargeability to be 
sealed by the presiding chairman ; but the Court held that this ground of appeal was 
sdEcient. The counsel for the appellants then objected — First, That no proof was 
contained in the above examinations and certificate of chargeability that the certifi- 
cate was sealed as required by statute. Secondly, That the residence of the paupers 
St the date of the order of removal, as shewn in the said examinations and certificate, 
was not a legal inhabiting and residence in the respondent township^ as required by 
the statute. And thirdly. That the said examinations did not shew that the pauper, 
Wm. Whitmill, had gained no settlement in his own right. All these objections 
were overruled by the Court, and after hearing evidence in support of a settlement 
alleged in a subsequent ground of appeal to have been gained by the pauper in the 
icspondent township, the order of removal was confirmed, subject to a case for the 
opDion of the Court of Queen's Bench, upon the above several objections ; and the 
fKttion for the opinion of the Court was, whether upon such objections the order of 
RBoval should have been confirmed or quashed. 

Emtimgf in support of the order of Sessions. — The first two objections affect only 
die RBSOvabiHty of the pauper at the time when the order was made ; and the mode 
in wbkh these objections are stated is not sufficient. The first ground of appeal is 
Cbst it does not appear by any legal evidence that the certificate of chargeability was , 
mgotd and sealed, as required by the statute, by the presiding chairman of the 
Mird of guardians. Now the statute, 5 & 6 Vict. c. 57, s. 17, requires the certi- 
fatte of chargeability to be signed by the presiding chairman, and t^ be sealed with 
the seal of the board of guardians. In this case it is signed by the chairman, and the 
maud of appeal therefore can only point to this — that it does not appear to have 
been sealed by the presiding chairman ; but that is not required by the Act. If it 
be meant to say that there is no evidence that the certificate is sealed with the seal 
of the guardians, this ground of appeal, properly construed, will not let in that objec- 
don. The second ground of appeal is general — <* That the order of removal was 
BMde without any legal evidence tliat Uie said Wm. Whitmill was at the date of 
Che same actually chargeable ;" but it has been decided by this Court that where 
spediic objections are pointed out in one ground of appeal, the appellants cannot, 
vadgr another and general ground of appeal, enter upon any other objections than 
diose specified. (72^. v. Sta^ Fiizpaine, 2 Q.B.488; 1 Gale & Dav. 605.) Reg. 
V. Whtiley Upper (11 Ad. & £11. 91) was a case very similar to the present. There 
die removal was founded on a settlement by parish apprenticeship, and the ground 
of appeal was, <' that the requisites of stat. 56 Geo. 3, c. 139, ani more particularly 
met. 5y were not complied with ;" and it was held that an objection arising properly 

rD the second section could not be taken under that ground of appeal, although 
fifth section referred to the second by the words << as hereinbefore directed;" 
Mr. Justice Patteson saying, ** The statement here not only leaves the respondents in 
knoraiice of the intended objection, but tends positively to mislead." [It was fur- 
ther argued, that there was evidence that the certificate of chargeability was, in fact^ 
properly sealed; that if not, still, looking at the whole proceedings, there was evidence 
efc na rg e abiiity independent of the certificate. {Reg> v. Roih^amy 2 Q. B. 557, in 
mdtS) And lastly, in answer to the objection that there was no proof of inhabitancy, 
tlist the residence of the paupers in the union workhouse at the time of the making 
efUie order at the charge of the removing parish was an inhabiting in that parish 
(£rffii^ ▼. Hereford, 1 Sess. Cas. 99 ; Rex v. St. Peter's and I^.Pauts, Bath, Cald. 213 ; 
Beg. ▼. SU Giieiy anti, p. 6} ; but no decision was pronounced upon these points.] 

F. V. Lee and Fig^, contrIL— As to the first point, the 5 & 6 Vict. c. 56, s. 17, 
— ' ^ tha the certificate of chargeability should be signed by the presiding chair- 



148 maghtrates* cases. 

man of the board of guardians, and sealed with the seal of the guardians. Upa 
this examination, there is evidence that the presiding chairman did sign it; but then 
is no proof that it was sealed with the seal of the guardians, or any seal at all 
[CoLERiDOB, J.-— You canuot travel out of your grounds of appeal.] The first groow 
of appeal is, " that it does not appear by legal evidence that the certificate of charge 
ability was signed and sealed, as required by the statute, by the presiding chair 
man ;" and there is no statement in the examination that there was any seal at ail 
[CoLBRiDGE, J. — I suppose the Sessions had the original before them. It would b 
apparent on the face of it^ whether it was sealed or not.] It must be established b] 
evidence that it was signed by the presiding chairman and sealed with the seal o 
the guardians ; and this ground of appeal is sufficient to let in the objectioD. I 
cannot be read as though it stood thus : *' that there is no evidence that the certi 
ficate was signed and sealed by the presiding chairman ;" for the words '< as requirec 
by the statute" point out the meaning; and the effect of the latter words, '* by Ch( 
presiding chairman," must be taken with reference to the sutute, and the dutie 
which that statute imposes on the presiding chairman. Secondly, there is not here 
independently of the certificate, any sufficient evidence that the paupers were, at th< 
time of making the order, actually chargeable to the respondent parish. [They wen 
then stopped by the Court.] 

Lord Denmavt, CJ. — It appears to me that the first is a good objection ; indeed 
I believe it is admitted to be so ; but then a doubt is raised whether it is not takm 
in so defective a form, that we are bound to take advantage of it to defeat the objeo 
tion ; but I do not tliink that that would be dealing ingenuously with this ground o 
appeal ; for though, from the words used, it may have meant that the presidia^ 
chairman did not seal the certificate, yet that is not in my opinion its real meaning 
. whoever put the seal to the document, credit would be given for its being doneibj 
the authority of the chairman ; but the real meaning of this objection is, that thi 
seal was not put to the document in the manner required by the Act. 

Pattbsovt, J. — I do not know how it is possible to get over this objection, unles 
it be contended that the seal proves itself; and if so, I do not know why the same 
thing might not be said with regard to the signatures, and why any evidence shonU 
be given that they were properly affixed. 

Williams, J. — All the difficulty is occasioned by the latter words of this gromd 
of appeal *' by the presiding chairman ;" if it had ended without those words, theo 
no doubt, it would have pointed distinctly at the fault complained of; but the wordi 
being there, they must be read in conjunction with the whole of the preceding part 
viz. ^* that the certificate of chargeability was not signed and sealed, as requirec 
by the statute ;*' and that explains the meaning. 

Coleridge, J. — I have no doubt that this is a good objection, if I understnc 
the facts of the case ; the only difficulty in my mind is, whether the objection is pio- 
perly stated. To ascertain that, it is necessary to confine the attention to the stale 
ment contained in the grounds of appeal ; and reading that, I confess I should \mm 
great difficulty in saying that it did not mean that the certificate was not signed anc 
sealed by the presiding chairman ; if that were the objection, if the objection in he 
were, that the certificate was not signed or sealed by the presiding chairman, I doiMH 
' linow in what better words that objection could be taken. RecoUectiog that: Chii 
statement cannot be moulded by looking to the Act of Parliament, I dovbt *m] 
much whether the appellants are entitled to the benefit of this exception. 

Keating then applied to the Court to make such an order as would enable theie 
'm>ondent parish to remove again on better evidence. 

Per Curiam.— «Thia decision does not finally dnpose of the settlement ; it'onlj 
.\affects the chargeability at the time in question; you mqr get a ^sh certifieale-io 
^'.chaigeability at any time. OnUr of Semma quaihid. 



TBHOTY- TEBUr , \9Mh. 4t, 

Q.B. Saturday^ Junel. 
ThsQuexn o. Thb Inhabitants of Wrxxham Regis. 

Omi'pmigM reUrf ^ifi>e» to the patter's husbmuTs mother^ vfhen a widow, is evidence of the pauperis 
eetflement^ mntil a eubaequent settlement be disclosed, 

Endenee of a wmheeguent settlement in the respondent parish is admissible, though disclosed on crosS' 
axamuuUitm, on the hearing' of the appeal, by one ^ the witnesses, on whose evidence the order of 
reuta m i -wtts madcg prawidsd that among the grotmds qf appeal there was one with which sttch 
{the subsequenf) settlement was consistent, though not proved to be identical. 

ON an appeal at the Denbighshire Quarter Sessions, against the removal of Eliza- 
beth Jarratty widow, and her son Thomas, aged 13, from Wrexham Regis, 
DeDbighshire, to Coddington, Cheshire, the Sessions quashed the order, subject to 
the opiDion of the Court on a case of which the main facts were these : — 

John Jones stated in his examination — " I knew the late John Jarratt about forty-four 
or fbrtj-five years ago ; he worked for me as a shoemaker at the time, and lived with his 
Crther, who was also a shoemaker. He worked in his father's house ; he continued in 

a employ some time, and then went to Overton, and enlisted in the Flintshire 
tia; he remained away many years, and on his return he married Elizabeth 
Toong, who is now his widow. The late John Jarratt never gained a settlement in 
Wrexham ; and I do not believe he ever gained a settlement anywhere. / remember 
Imwmiker recdning relief Jrom the parish of CkMington^ Cheshire^ whilst she tvas living 
ts Wmdkam* She received relief for several years (up to the time of her death), from 
ikanid parish of Coddington, as a pauper belonging thereto : her rent was paid by 
the overseers of the said parish ; this was after the death of her husband, the father 
iftha late John Jarratt, whose place of settlement was in the said parish of Codding- 
tmT The widow gave similar evidence, and stated that neither her late husband nor. 
her SOD. ever did any act to gain a settlement. 

Tbae were eight grounds of appeal, of which those mainly relied on were— - 

2Dd. That there was no legal evidence of a settlement in Coddington. 

Srd. That it cannot be certainly known in the evidence of John Jones who is meant 
bjr John Jarratt, twice mentioned therein. 

4Ch.. That some of the facts are too general, and want particularity. 

5th. That some of the facts are alleged upon mere belief. 

6th.. That the said John Jarratt was not in fad settled in the said parish of Cod- 



7di. That there was a subsequent settlement in the respondent parish. 

0& the hearing of the appeal, the examination was held suflBcient, but the widow^ 
oahar COM examination, proved a subsequent settlement in the respondent town- 
ship, hj reoeiptof relief subsequent to her husband's death, while she was residing 
iaanodier township, upon which the order was quashed. The question for the dea- 
sioB'of the Court was, whether the Sessions were right as to the sufficiency of the 
cnHDiiiatson to sopporl the order of removal, and whether they were right in admit- 
tiiB» as evidence of a settlement in the respondent township, the facts disclosed by 
tta widow in her crosa-examination, who was one of the respondents' witnesses, upon 
iribosa evidence the order of removal was made» and who might as well have made 
iMh diaclosiire before* the removing magistrates. If the Court are of opinion that 
the . Seasions were not right in hearing the appeal, the order of removal to be ^ 

^*— -^forwent of form, but not on the ments; but if otherwise, and that the 

s on croaa«exaroination was admissible, then the order of Sessions to be con« 
J hut if not admissible^ then the. order of Sessions to be quashed and the order/ 
sCftnaDval to he confirmed^ 

UMamk, in sapport of the order. — The relief to the mother gives a settlement to*. 
Ae MOV which -the wife derives, and the examinations are sufficiently precise* 
[PaitsmmIv J.-»-Here the giving of relief is not in itself a settlement, but only evi- 
dace of' one nntil it bC' rebutted.] The examination contains on the face- of it a. 
i s tdcic nty the fhcts of which are not denied, but there is merely a preliminary object • 
ti8asakani»il; and •then.evideneeofa subsequent setdeoMot it obtained fromche^ 



60 MAGISTRATES* CASES. 

respondents' witness on cross-examination » which they had no right to do without 
specific notice in the grounds of appeal, according to the 8 1st sect, of the 4 & 5 WilL 
4, c. 76. We have disclosed a settlement, which they do not deny, but propose to 
shew another settlement gained in a different way. They are bound to shew a 
settlement in some way consistent with the grounds they have set up. There must be 
some evidence to connect the settlement with that alleged. [Bv the Court.— 
There may have been some ; it may have been identical with that alleged*] 

V. Lee^ contra, was stopped by the Court 

Per Curiam. — We think that the evidence by the widow was admissible. It 
was consistent with the ground of appeal of which notice was given. 



The Quben v. The Inhabitants of Lidford. 

A reliemng officer stated, " I knew the pauper G. X., who i» now residing in, and chargeable to, the 
said parish qf W. :" Held, insufficient emdence qf the chargeability (^ the pauper ; and aioo thai 
chargeability is a ** ground qf removal on appeal within the Slst section qf 4 Sf b Wm, 4, c. 76. 

ON an appeal at the Devonshire Quarter Sessions, against an order for the removal of 
George Leman, his wife, and their three child ren, from the parish of Widdi- 
combe-on- the- Moor to the parish of Lidford, both in the county of Devon, the 
order was confirmed, subject to a case, of which these are the main points : — 

The evidence of chargeability consisted in these statements by the pauper and the 
overseer: — The pauper states, <<I am now, with my wife and three children, residing 
in the parish of Widdicombe-on-the-Moor, and chargeable to the said parish. I am 
now confined to my bed and incapable of being moved, from a broken leg." 

Richard Evans, the relieving officer of the Newton Abbott Union, states, <* I know 
the pauper George Leman, who is now residing in, and chargeable to, the said parish 
of Widdicombe-on-the-Moor." To this evidence the mother of the pauper adds a 
statement that the pauper and his family are ** at present residing in, and chargeable 
to, the parish of Widdicombe," &c. 

The grounds of appeal were that there was not sufficient legal evidence of the 
chargeability of the paupers at the time of the examination, and that the best evidence 
thereof had not been produced before the justices, and this was also the question for 
the decision of the Court of Queen's Bendi. 

Merivale, in support of the order of Sessions.— jR^^. v. High Bickington (ante, p. 1) 
will be relied on by the other side ; but here the statement of chargeability is 
made in the heading of the order of removal. It is distinctly stated that the paupers 
were chargeable to JViddicombe. In Reg. v. Inhabitants of Rotherham (2 Gale & 
Dav. 521), the pauper's statement was, that her children << were poor and chargeable 
to Sheffield," which was held sufficient. But chargeability is a fact which is merely 
preliminary to the jurisdiction of the justices. It is not itself the settlement which i» 
the real point to adjudicate upon, but is merely the foundation upon which the adju- 
dication proceeds. It was enacted by 35 Geo. 3, c. 101, s. 1, that no person should 
thenceforth be removed until ** actually chargeable ;" but this is only the foundation 
of removability, and nothing more, — a compendious statement of the jurisdiction to 
remove, but not a legal inference. There are, in fact, two meanings to the tenn 
chargeable : one is the mere naked fact of being so. [Williams, J. — ^What diffi- 
culty is there in saying that he has received five shillings ?] This, that it does not 
shew he received relief the day after. And a man may, in fact, have received na 
relief and yet be chargeable. [Coleridge, J. — Would Uiat do ? Must he not be 
actually chargeable ?] If a man comes to the relieving officer and says, '< I have no 
relation who can support me ; I am quite destitute," the overseer is bound to relieve 
him at the moment he says this. The giving of a shilling is only evidence of relief. 
It is only required that the examination should be " duly taken." Before Reg. t. 
High Bickington^ no case ever stated the insufficiency of evidence of chargeabilitpr 
as a question for the decision of this Court. Under 4 & 5 Wm. 4, c. 76, it 
is not a ground of appeal at all to an order of removal that there is no 
evidence of the preliminary pobt. The Slst section of the Act prohibits the par« 



TRINITY TERM, 18U. 51 

del at the appeal from going into any other grounds of remaoal or of appeal Uian 
thoae stated in the order, examination, or statement But what meaning could this 
have as applied to chargeabih'ty, which it was clearly the intention of the legislature 
to leave to the justices to be determined as a matter purely preliminary to removal, 
and fidling as it previously did within their own jurisdiction ? This point was not 
taken in the argument in Reg. v. High Bickington. It would be a very great satis- 
ftction to parishes if this Court could thus decide the point, and remove this objec- 
tion. [CoLXBiDGE, J.— But it might be the means of producing great inconve« 
nience.] The whole effect would be to leave chargeability as a preliminary matter, 
precisely as it was before the Poor Law Amendment Act was passed. [Colbridob, 
J. — Removals were then made, no matter how bad the evidence was. In fact they 
never looked to it.] The object of the Act was to prevent parishes from tripping one 
another up on grounds of removal of which no notice was given. Grounds of re- 
moval can alone mean grounds of settlement. The question of chargeability is left 
hj the Act just where it was. [Williams, J. — Suppose that no relief was given, 
sod that he was chargeable upon the face of the examination, how could the ques« 
tioD of chargeability be raised at all, there being no other ground of removal than 
that stated in the examination ?] All that would be necessary in such a case would 
be to say that the pauper was not chargeable. [Colbridgb, J. — How would the 
appellants know the fact as to whom the pauper was chargeable ?] Just as they 
vould before the Act. If the legislature had deemed such minute points of impor- 
tance, it would have said so. Parties are not concluded by want of proof of charge- 
Mi^. They may remove again. [Colbridgb, J.— By holding the parties strictly 
to te requirements of the law, it is designed to prevent great abuses m other cases. 
The legislature is at the same time indisposed to prevent removals : but you do not 
deay diat chargeability is essential to removal.] It is. [Colebidgb, J. — Then is 
it not part of die examination on which removal depends ? It is easy to send all] 
Tes, when it is substantive ground of removal. But it is otherwise as to mere pre- 
liminary matter. There is no case in which a defect in the evidence of chargeability 
akme lias been the ground of quashing an order of the Sessions. 
Greetmoodt contra.— /^, v. Black Callerton (2 Per. & Dav. 475.) 
Lord Dbnman, C J. — The answer is there given. I fear the objection must pre- 
vaiL Order of Sessions quashed. 



Thb Qubbn V, The Inhabitants of Abeeoabon. 

' tioM that the was the widow of A B : Held a sufficient statement of her marriage, without 
the date or place of marriage, 

ON an appeal against an order for the removal of Mary Jones from the parish of 
Uawndwa to Aberdaron, the Sessions confirmed the order of removal, sub- 
ject to a case for the decision of the Court of Queen's Bench, which set forth these 
6cts: — 

John Evans stated in his examination : *• Mary Jones is the widow of Evan Jones, 
die late son of this examin? nt^ by Elizabeth his wife.'* He then stated a settlement 
gained by himself from his father, who rented a tenement. Mary Jones said, *' 1 am 
the widow of Evan Jones." Among the grounds of objection was this : '* The exa- 
flUDatloDS do not state either the time or place of the marriage of the said pauper 
vitli her deceased husband " 
F. Lee and Figatt^ in sup|>ort of the order of Sessions, were not called upon. 
Waleshf^ contr^.— There is no statement of the date of ti.e pauper's marriage with 
her husband. The Sessions held th t this sufficiently appeared, subject to the opi- 
nion of thb Court* |Lobo Dbnman, C.J. — How do we know that they have not 
done right in thus concluding?] A woman's being a man's widow is a conclusion 
of law. It is a status to wliich certain rights attach. The marriage mapr have been 
ilWgal and void. The parish has not the means of ai^certaining the fact [ Lord 
Dbvm AN, C. J.-»The statement, that a person is another's son is a much more 



182 XAGIBTBATEB* GAUSL 

' eomplieftUd qncttion of fanr.] But bersire lute not the mant ^wHidag tmjm- 
' ^'y- <^9- ▼• EeelahaU Bieriom^ 1 1 Ad. & £11. 60^) 

iJoRD Dbnman, C. J. — ^Tbe ^BetiioDd foond the ipfernMitiop-wtfficieftf, 



Q.B. M&ndayfJune S. 

Trb Qujbbn v. The* Ikhabitaitts of Lbsos (Washtok v. Lkxds). 

(This case was fint argued on 20th April, 1844.) 

^ tf?t/^'« espren eo n t em t if mumtial to her rammmkiUty from her kut^ mm d to ker ma i dem ott th m wt . 
Children above the age qf nmrtmre JoUmo tkehr wtoiker'i mmiden tettiemeni wk mi ikeir fatha^9 -4» 

When the settlement of the huehand of thepmiper emmot be aeeertmned, it it st^fficiekt to tfaie that 
diligent inquiriei have been wtade to discover it, m order to entitle the wife and ekUdren to fke 
wife's maiden eett le m ent , 

Meadimpe qf examination are tt^teient whieh etaie thai it relatee to the tettlement of the fatker, 
although the tettlemeni of the wife and children w, through hit, the tmbtUmtioe obfact qftrngmrg, 

ON appeal to the Leeds Borough Sessions, against an order for the removal of 
Lydia Morgan, the wife of John Morgan, and their four children» from Leeds 
to Washton, the Recorder quashed the order, subject to a case which diiefly consated 
of these facts :— « 

The essential part of the examination of John Morgan, the hushand, was air iM- 
lows : — He stated his marriage and the birth of his diildren ; that his father and 
mother never gained a settlement in England ; that he was ignorant of his place df 
birth, though he had made '* diligent scvch and inquiry to ascertain it ;" that ht 
and one George Smith *< inquired of all persons' and searched in all likely fdaeeslo 
find a place of settlement for me, but without success ; that we could not dtscover 
any place of settlement for me, and I believe I never had any. I hereby consent 
and agree that my said wife and children shall, without me, be removed to the tmm- 
ship of Washton, in the county of York, that being the last place of her nuddea 
settlement at and immediately before my intermarriage with her, and pray that snch 
removal may be forthwith made accordingly to law." The examination was headed-*^ 
^< The examination of John Morgan, &c. touching the place of his lawful settle-^ 
ment." The examination of George Smith, an overseer, followed, who corroborated 
tlie above-mentioned diligent search and inquiry. The examination of the wife was 
also given, which, though it set forth her maiden settlement, contained no evidence 
of her willingness to be sent there away from her husband. 

The grounds of appeal were in substance these : — 1st, That it is not negatived thBt 
John Morgan was an Irishman or Scotchman, or born in the Isles of Man, Guernsey^ 
or Jersey, (a) 2nd, That it does not appear that any search was made to find John 
Morgan's settlement in Ireland, Scotland, Man, Jersey, and Guernsey, by the said 
overseers of Leeds. 3rd, That the examination does not shew in what manner the 
search was made in England. 4th^ That although the said examinations shew 
that the said L. M. and her children were living with her said husband in the said 
township of Leeds, at the time when the said examination was taken, yet it does not 
appear on the said examinations that the said pauper L. M. consented to be removed 
to the said township of Washton^ or consented to be removed at all without her hue* 
band, the said J. M. 5th, That the said examinations were informal, insufficient! 
and bad, in respect of other matters, besides those to which the preceding grounds 
of appeal relate ; and that the said examinations do not shew a good and sufficient 
cause for the removal of the said paupers from the said township of Leeds to the said 
township of Wasliton. 6th, That the examinations whereon the said order of re- 
moval was made were not duly taken. 

X|ftJt£COBDSR quashed the order on the fourth^ fifth, and sixth grounds. 

F 



the whole familv wonld hare of the birthplace being in Ireland, &c. rather than 
there. Thia ground of objection in England, ^ith which it would be uaeleaa to hnr* 
■rgmnent about the probabUities den this report.^5. 



TBimTY term; 18il 53^ 

Blut (widi whom was StapUton), in snpport of the order of Senion8«*-In R. v. 
Wham (5 East, 113), the wife assented to the removal from her husband, here she 
■tt not done so. In R. v. Leeds (4 B. Sc Aid. 498), that judgment was upheld. 

HaU (with whom was Pashlev). — The headings need not exhibit the particulantj 
of a formal caption, it is enough to state the subject-matter. The presumption is, 
mma rite ado. {Candle v. Seymour, 1Q.B. 888; R.y. SUkstone, 2Q.B. 520.) 
The onus of the proof that the husband was born in Ireland, &c. was upon the appel- 
lants; the maiden settlement of the mother suflSces. (iL v. St. Margaret's, Leicester^ 
SAd. & EIL 644.) The wife did not dissent, and was present whilst this sentence 
was named. Pickard v. Sears (6 Ad. & £1L 469) ; R. v. Eastbourne (4 East, 103), 
aod R. F. EHham^ decide this case. 

Cur. adv. vult. 

Fer CuBiAU^ — It is not necessary to determine whether R. ▼. EUham is rightly 
decided, for in this case there is no evidence that the wife consented to be removed 
aray from her husband, and the order of removal, therefore, clearly cannot be sus- 



Order of Sessions confirmed, 

Ob Jane Srd, Hilary Term — 

Hailf in support of the order of removal. — Two of the children removed under the 
Mfa were above the age of nurture, and might therefore be removed from their 
■ wuts , and without thar mother, to her maiden settlement. , 

Cur, adv. vuU, 

Bar Curiam.— The order of the borough Sessions was confirmed solely upon 
te^pauud that the wife had not consented to the removal from her husband. 
Allhe time of the hearing of this appeal, we did not recollect the fact that the ages 
of Ihe children were different, and that two of them were above the age of nurture, and 
i ew ftae might be removed without their mother. It now becomes necessary, there- 
m^ to determine the other objections made by the appellants. One of the points 
i se lec tion relates to the examination of the father and mother, which were taken 
ndang the settlement of the father, whereas the order relates to the settlement of 
heaoUier. But an inquiry into the father's settlement was necessary in this case» . 
ite foundation of the matter^ for until his settlement was found to be unknown^ 
be nother^s maiden settlement was not material. The headings shew jurisdiction, 
Indi is enough, for this is not the case of an indictment for perjury, when more 
■ticalarity is required. As it appears that diligent inquiries for the father s set- 
iessent were made, that is a sufficient statement ; their precise nature need not be 
Med, nor need the examinations negative the birth of the pauper in Ireland, Scot- 
nd, or the Islands of Man, Scilly, Jersey, or Guemsev. It is impossible to do so 
leqrt by shewing where the man was bom, and it is absurd to require it. We are 
berefore of opinion that the order of removal was good as to the two children . 
bsve the age of nurture, but bad as to the mother and those below the age of 

Order partially quashed and confirmed accordingly. 



TwE QusBN V. Thb Justices of the West Riding (Bickinoton v. Elland). 

E«w will m»i be giom to JUe a tmpplewtefUat affidatit to dutmguuh a ease fnm one already 
dteidad, in order to obtain a mandamue to hear an appeoL 

A RULE had been obtained to shew cause why a mandamus should not issue to 
[\ oonmand the justices of the West Riding Sessions to enter continuances and 
car an appeal ; but in consequence of the similarity between this case and that of 
1e Queen r. The Justices ofKesteven (antB, p. 8), Jiotf, for the appellants, obtained 
tve to take time to consider whether he could distinguish this case from that of The 
}uen V. The Justices ofKesteven. 

On Friday, May 24th, Hall again applied to the Court for leave to file a supple- 
cntary affidavit to enable him then to distinguish the two cases. The affidavit will 



5i MAGISTRATES' CASES. 

shew that both parties were misled by the decisions which The Queen v. Ketieven 
overruled. There is no rule of jurisdiction against the reception of additional affi- 
davits ; it is merely a matter of convenience. (2 Chit. Arch. 785.) Here it 



expressly intended that the point at issue between the parties should be raised by 
mandamus rather than by a case, that being the dieaper mode of proceeding. Till 
last term^ every one had believed that this was a legal and proper mode of raising 
the point. By repeated decisions, the Court has upheld this very mode of procedure. 
{Reg. V. The Justices of Cormoall, 5 Ad. & £11. 134; Reg. v. The Justices ofDerby^ 
shire, 6 Add. & £11. 885 ; Reg. v. The Justices of Denbighshire, 9 Dowl. 509.) These 
cases are all overruled by Reg. v. Kesteven ; but the Court will not punish parties who 
have been misled by its own error. [Lord Denman, C J. — ^We understood that yoa 
would be able to distinguish this case from Reg. v. Kesteven, if we gave you time to file a 
fresh affidavit.] In overruling Reg. v. Carnarvonshire^ the Court only overruled its own 
decision ; but I now shew that it overruled also the decision of Littledalcy J. in Reg. r. 
The Justices of ComvmLl. [Lord Drnman, CmJ. — You are rather taking advantage of 
the permission we gave you to endeavour to distinguish this case. You now say that by 
filing another affidavit we shall see cause to overrule our former decision.] I take it at ^ 
an indulgence to be allowed to file thb additional affidavit. [Lord Denmak, C. J.— > 
If you had asked this at first, I think I know what the Court would have said.] The i| 
Court sees the ill consequences of overruling ten or twelve decisions, and putting an 'L 
end to a cheap mode of proceeding. [Lord Dbnman, C.J. — That is not to the % 
purpose. To say that it is cheaper, is no reason that it is proper.] The course of the \ 
decisions of this Court has been such as necessarily to mislead. If I am permitted ;, 
to file this affidavit, it would shew that justice had not been done in this case. [Lord ^j 
Denman, C. J.— The Court has considered the cases, and has decided that an ener ^ 
was made in the course then adopted ; and it has corrected that error in the leit , 
case; and the only question now is, can you distinguish this case from that?] In Bos .. 
V. The Justices of Lancashire (7 B. & C. 691), (a) a mandamus was granted to compel 
the justices to hear an appeal, of which due notice had not been given, and Lord ^ 
Tenterden, C.J. then said — ''Justice will be most satisfactorily administered by I 
ordering the justices to enter continuances and hear the appeal. They certainly ^ 
had a discretionary power to make rules for the governance of the practice at the 
Sessions, but the case cited (72. v. The Justices of Wiltshire, 10 £a8t, 404) (a) shews 
that this Court, for the purposes of justice, will interfere to control that discretion." So 
in this case, for we acted according to what we were bound to think right. {R. v. The 
Justices of Wiltshire, 1 £ast, 683.) (a) [Lord Denman, C. J — Rex v. The Justices 
of Wiltshire was an appeal out of time, which the Court thought in time, owing t0 
the circumstances of the case. If a rule were to be granted to shew cause why a 
supplemental affidavit should not be filed, that would give the opposite party aa 
opportunity of answering it] Certainly. 

Cur. adv. vuU» 

The judgment of the Court was given on Monday, the 3rd of June. 

Per Curiam. — We think that this application cannot be granted. The case of 
Reg. V. The Justices of Kesteven was rightly decided. We have for some time been of 
opinion that the cases of Reg. v. The Justices of Derbyshire and Reg. v. The Justices ef 
Carnarvonshire could not be supported^ and they have been properly overruled. 

Leave refused* 

(a) These cases afFord no authority for granting^ and their discretionary |X>wer ; and the Court Mk 

a mandamus ia this case. They all three relate to will do so, where the justices have clearly done 

the DOD-hearing of appeals, and have therefore re- wrong on a preliminary point; but in R, ▼. ThjeJtu* 

ference to ** preliminary points," to which the in- Hces of Monmouthshire (3 Dowl. 306), Mr. Jostles 

terfereoce of the Qaeen's Bench extends. In the Patteson, citing this case in 10 East, says that it !• 

case in 10 East, Lord Ellenboroagh, C.J. certainly one in which ** some of the expressions have beca 

lays down the doctrine that the Court may exercise a cautiously abstained from in later cases, because fksr 

** kind of visitatorial jurisdiction *' o?er the justicei judges thought they went too far.''^^. 



> 



TRINITY TERM, 1844. 55 



C.P. Monday^ June 3. 
Peters and Another v. Cl arson and Another. 

r io the condensation to be paid to the ownert or occujMrs of land for damage done 
ai qf materiaUf SfC, under the 54M eect. qf b SfS Wm. 4, c. 50, or by the making, 
. of ditches, drains, Sfc, under the 67th sect., are to be settled by order qf the justices- 
Sessions for the highways; and an actioii of trespass is not maintainable against the 
highways for any thing done under the authority qf those sections, by reason qf their 
lid or tendered any compensation to the owners or occupiers qf the land damaged ; the 
uch compensation being a condition subsequent, and not a condition precedent, to the 
surveyors to enter upon the lands for those purposes, 

SS — quare dausumjregit. Pleas — Ist, Not guilty, by statute, (a) 2nd, 
he defendants were surveyors of the highways ; that the close in which, 

a common highway ; and that the defendants entered, &c. for the pur- 
nsing and keeping open a certain drain, as they lawfully might, &c. 
admitting that the close in which, &c. adjoined a common highway, 
sque residuo causa. The defendants were surveyors of the highways ; 
rharacter had, on the 24th of March, 1843, opened a drain on the land 
iff*s^ which adjoined a certain highway, for the purpose of letting off* 
lerefrom; but had not made or tendered any compensation to the 
the damage done to their land. On the 8th of April following, notice 
s given, but there was no evidence whether a Special Sessions for the 
id been held between the 24th March and the 8th April. On the 
last Warwickshire Spring Assizes, 1844, before Tindal, C.J., a verdict 
)r the defendants ; but the learned judge reserved leave to the plaintiffs 
i Court to set aside that verdict, and to enter one for the plaintiffs, 
mages. Mannings Serjt. having, on a previous day, obtained a rule to 
n pursuance of the leave reserved, 

rjt. (with whom was G. Hayes) now shewed cause. — There is no dispute 
:s ; the defendants are admitted to have been surveyors of the highways, 
ccasion in question to have acted in that character. The question is, 
>ie to this action of trespass ? That depends on the 54th & 67th sects, of 
4, c. 50 (the General Highway Act). The 67th section authorizes the 
• make, scour, cleanse, and keep open all ditches, drains, &c. in and 
lands, adjoining any highway, ** upon paying the owner or occupier of 
Src. for the damages which he shall sustain thereby," to be settled and 

same manner as the damages for getting materials. That manner is 
\f the 54th section, which provides that the surveyor shall make such 
or the materials taken away, and also for the damage done, ** as shall be 

owing are the clauses of 5 & 6 of the said materials as by the discretion of the said 

material to this case. Sect. 54. surveyor shall be thought necessary to be employed. 

lawful for every such surveyor, for in the amendment of the said highways ; the said 

lud, by license in writing from the surveyor making such satisfaction for the materials, 

pedal Sessions for the highways, to which may be got or taken away, and also for the 

I, and get materials, if sufficient damage done to such lands or grounds by the 

conveniently within such waste lands, getting and carrying away the same, as shall be 

Is, rivers, or brooks, in or through settled and ascertained by order of the justices at a 

■al inclosed lands or grounds of any special Sessions for the highways. 
>ever (such lands or grounds not Sect. 67. That the said surveyor, district sur- 

), yard, avenue to a house, lawn, veyor, or assistant surveyor shall have power to 

or inclosed plantation, or inclosed make, scour, cleanse, and keep open all ditches, 

ding 100 acres in extent) within the gutters, drains, or watercourses, and also to make 

le same shall be wanted, or within and lay such trunks, tunnels, plats or bridges, as 

ish adjoining or lying near to the he shall deem necessary, in and through any lands 

liich such materials shall be required, or grounds adjoining or lying near to any highway, 

ir to sneh justices that sufficient ma- upon paying the owner or occupier of such lands or 

eonveniently be had in the parish, grounds, provided they are not waste or common^ 

tiways lie, or in the waste lands or for the damages which he shall sustain thereby, to 

Is, rivers or brooks of such adjacent be settled and paid in such manner as the damagee 

It a sufficient quantity of materials for getting materials la inclosed lands or grounds 

the use of the parish, where the are herda directed to be settled and paid. 
and to take and carry away so much 



M BIAGISTRA.TES* GASES. 

settled and ascertaiQed by order of the justices at a Special Sessions for the highways.'' 
No satisfaction^ therefore^ could be made, until a Special Sessions for the highways 
had been held, and had settled and ascertained its amount : here it is clear that no 
such Special Sessions had intervened between the commission of the act complained 
of and the notice of action ; for the 45th section of the Act expressly aUows fourteen 
days from the 20th March, for the holding of that Special Sessions, at which all the 
other Special Sessions for the year are to be fixed and appointed. No laches can be 
imputed to the defendants ; for the only tribunal to which they could go for the pur- 
pose of having the compensation to the plaintiffs settled and ascertained, was that of 
the justices in Special Sessions assembled. Bot/fidd v. Porter (13 East, 200) is a 
decisive authority on that point. There has been no tender c^ amends by the 
defendants, and none is required. The opening of the drain may be an injury to the 
plaintiffs land, or it may not : the justices in Special Sessions must decide that que^ 
tion ; but the Act gives the surveyors license to enter; and, indeed, it goes further; 
for sect. 109 provides that, if the matter or thing complained of shall appear at the trial 
of any action to have been done under or by virtue of this Act, the jury shall find a 
verdict for the defendant. The defendants, therefore, cannot, at all events, be treated 
as trespassers ; and this rule must be discharged. 

Mannings Seijt. (with whom was Mellor), contra. — This case altogether depends 
upon the construction of the 67th section of the Highway Act, and the language of that 
section is clearly sufficient to support the action. The defendants were unquestion- 
ably trespassers, unless they had authority under that section; and what is the 
auUiority which that section gives? It empowers the surveyors of highways to 
make, scour, cleanse, and keep open all ditches, gutters, drains, &c in and through 
lands adjoining highways — When ? ** Upon paying the owner or occupier of such 
lands, &c. for the damages which he shall sustain thereby." Excepting, thereforeb 
** upon such payment," no authority or power whatever is given. Here there has 
been no such payment, and the defendants are liable in trespass. There should at 
all events have been a tender of some compensation to the plaintiff before the entry 
upon his land. 

TiNDAL, CJ. — It seems to me that the proper construction of the 67th section of 
the 5 & 6 WilL 4, c. 50 does not make thie ascertainment of the damages or the 
tender or payment of them a condition precedent to the authority which is given 
to the surveyors, and upon which they had a right to enter on the occasion in 
question, llie object of their entry was to let off certain water which was so 
collected as to become a nuisance to the highway; and under section 67 they have 
power '' to make, scour, cleanse, and keep open all ditches, gutters, drains, &e» 
in and throueh any lands, &c. adjoining any highway ;" then come the words which 
give ground for the contention on the part of the plaintiflb : *' Upon paying the owner 
or occupier of such lands or grounds, provided they are not waste or common, for the 
damages which he shall sustain thereby, to be settled and paid in such manner as the 
damages for getting materials in inclosed lands or grounds are herein directed t» 
be settled and paid." Primd faciei certainly, loo&ng only at the words ''upon 
paying the owner or occupier of^uch lands or grounds," the payment required would 
appear to be a concurrent act; but it is obviously quite impossible to ascertain befim 
the damage is done what injury will be sustained by the owner of the land. There- 
fore, if this section stood alone, and contained no reference to the 54th section, I 
should think that it could not be understood as meaning that the payment or tender 
of damages was to be an act concurrent with the entry ; and if that be so, then such 
payment would be a condition subsequent, and not a condition precedent But the 
words of the statute do not stop here ; the 54th section allows the surveyors, br 
license in writing from the justices at a Special Sessions for the highways, to search 
for, dig, and get materials, if sufficient cannot be conveniently had within waste lands, . 
&c., in the several or inclosed lands of any person whomsoever, &a, ''the said surveyor 
making such satisfaction for the materials which may be got or taken away, and also 
for the damage done to such lands or grounds by the getting and carrying afvay the same^ 
a settled and ascertained by order of the justices at a Special Sessions for the 
f and I confess that I cannot myself see any difference between the words 



THINITY TERM, laM. St 

'* upoD paying ^ and the words " making satisfiEiction." There is a case (a) already de- 
cided oo a former Act of Parliament relating to highways* which shews that if materida 
ne taken^ and for that purpose a new way is made over the plaintiff's land, it is not 
necessary for the surveyors to shew that the damages paid into court are sufficient 
to compensate the owner; because the Court say there that the jury at Nisi Prius 
cannot try that question at all, the statute having referred it entirely to the decision 
ef the justices at Special Sessions. Then the question arises, whether there is any 
material diflEerence between the new Highway Act and the old one (h) in this respect; 
snd if we look at the words of the statutes^ they really are substantially the same. 
The construction of both must be governed by tne decision in the case of Bo^eld 
1. Porter; and that shews that the present action is not mamtainable. There is 
BOthinff that I can see, even now, which prevents the plaintiff from going to the 
Spedal Sessions for the highways, and getting compensation for any injury which 
BMrr have been done to his land. This rule must consequently be discnarged. 
CoLTMAK and Cbesswell, JJ. (c) concurring, 

Rule discharged* (d) 



Q.B. Monday^ June 3. 
The Queen v. The Inhabitants of Skipton. 

tmm frtntndfor quatking a writ of certiorari issued for the purpose of bringing up mt order qf 
f^tit Sessions, made upon appeal against an order qf Justices , that it does not disclose who were 
fl» wmpondemis; it does enough if it so describes the order that the Court of Quarter Sessions 
em dmriy see what is to be returned. The recognizance entered into in pursuance of stat, 5 Geo, 2, 
f^ If, #. 2t was conditioned to prosecute the certiorari with effect and to pay costs to ** the prose" 
cater/' Meld st^fieient, because the practice qf the Court is to make the party at whose instance the 
wrii goea the drfendani, and the other party " the prosecutors ;** and, according to that practice, 
Ok respondent parish wouid be ** the prosecutors,** 

CERTIORARI commanding Charles Heneage Elsley, Esq., Recorder of the dty 
of York, assigned to hear and determine divers felonies, &c., to send under his 
Hal before the Queen, at Westminster, immediately, &c., all and singular orders made 
ly him lupoD the appeal of the inhabitants of the township of Skipton, in the West 
luding of our county of York, appellants against an order of two justices of the peace 
fiir the said dty, adjudging the settlement of one Jas. Gill Scowby, an alleged lunatic, 
to be at the said township of Skipton ; with all things touching the same as fully 
uA perfisctly, he. 

Dated the SOth day of May, in the sixth year of the reign of the Queen. 

Betom: Setting out the entry and respite at the Epiphany General Quarter 
Ssssions of the Peace, held at the Guildhall of the dty of York, on the 2nd dajr of 
JsDoarjy A. D. 1843, of an appeal against an order of two justices for the said city, 
bearii^ date the 17th day of October, 1842, adjudging the last legal settlement 
of one Jas. Gill Scowby, an alleged lunatic, to be at the said township of Skip- 
too, and ordering the churchwardens and overseers of the poor of the said town- 
sh^ to pay to the churchwardens and overseers of the poor of the parish of St. 
Dcnnisy in the said city of York, a certain sum of money therein mentioned, being 
the reasonable charges of conveying the said Jas. Gill Scowbj^ to a certain house 
tecin mentioned, and duly licensed for the reception of insane persons, and 
alio to pay to the keepers of the said licensed house the weekly sum of 8s. 6d. 
far the maintenance, medidne, dothing, and care of the said J. G. Scowby, &c., 
ind that at the Easter General Quarter Sessions for the said city of York, hdd 



^1 



Btgifiad ▼. PoHer (13 East, 200). (c) Manle, J. was absent in consequence of in- 

I 17 G. 3, c. 78, the 29th sect, of which cm- din»osition. 

IMpcfs snnrryors to get materials from inclosed (d) SeeZ<it/«r ▼. Lohley (7 Ad. & EU. 124), and 

Mi, " the said svnreyors making such satisfac- Paddock t. Forrester (3 Scott, N. R. 715), in both 

tt« fsr the daaiage to be done to such lands or of which cases similar expressions to those used ia 

~ ' ,*' Sec. as ahaU be agreed on between the the 54th and 75Ui sections of 5 & 6 Wm. 4, c. 50, 

or, in MM of ditagromcnt, settled by the reedTod a iimilar eonstmetion.— B. 






▼OL. I. 



£d MAGISTRATES' CASES. 

on Tuesday, the 4th day of April, A. D. 1843, before Charles Heneage Elsley, Esq*^ 
the Recorder^ the same came on to be heard ; and after hearing evidence and the 
arguments of counsel on both sides, it is ordered and adjudged by that Court that 
the said order be confirmed, and the same is confirmed accordingly. 

C. H. £lslet, Recorder. (L. S.) 

The order of the two justices was also returned. The recognizance entered into 
by the appellants, in pursuance of 5 Geo. 2, c. 19^ s. 2, was conditioned to prosecute 
the certiorari with effect, and to pay *' to the prosecutors'* their costs, &c. A rule 
nisi having been obtained to quash the writ of certiorari. 

Hall now shewed cause.— The principal ground for this application is, that the 
writ does not disclose who were the respondents in this appeal, but that omission is 
wholly immaterial. All that is required in the writ of certiorari is such a description 
of the orders that the Court below may know what is to be returned. Objections of 
this kind have always been taken on the ground of variance between the return and 
the writ ; but where that objection exists, the consequence is — not that the writ is 
bad, but that the order is not returned. In Rex v. Barking (4 Salk. 452), a certuh- 
rari issued to remove all orders concerning the inhabitants of the parish of Barking, 
Needham-Market, and Darmesden hamlets ; and the orders mentioned Barking, and 
Needham and Darmesden hamlets, which was held a variance, because the return 
did not say that Needham and Needham-Market were the same place ; but in this 
case there is clearly no variance ; the omission of the respondents cannot be so con- 
sidered; the question is, whether the Recorder had sufficient information; and the 
best answer i% that he has sent up the right order. Further, it nowhere appears 
who are the parties applying for this writ, and consequently the case is governed by 
Daniel v. Phillips (4 T. R. 499)^ where it was held that third persons cannot object 
to the misdirection of a certiorari to remove a cause from an inferior court, if the 
proper officers in whose keeping the record was waive the objection and return the 
record upon such writ. That the names of the respondents were not given can, how- 
ever, be no objection at all. The Crown might not know the respondents' names ;— or 
the very objection, on account of which the order was to be removed, might be, that 
there were in fact either wrong respondents or none at all. That is so here. It will 
be contended that there were wrong respondents in point of fact, and that the appel- 
lants are consequently entitled to no remedy by certiorari, (a) If so, then the judg- 
ment of the Quarter Sessions to confirm the order must be wrong, and we are en- 
titled to have it quashed. The last objection is, that the recognizance is not drawn 
up in a form adapted to this case* The condition is, that '< if the inhabitants of the 
parish of Skipton shall prosecute with effect, &c., a writ of certiorari issued out of 
the Court of our Lady the Queen, &c., and shall pay to the prosecutors, within one 
month next afler the said orders shall be confirmed, all their full costs and charges,** 
&c. ; and it is contended that that condition must be incorrect, because it requires 
the prosecutors to pay to the prosecutors their costs ; but the answer is, that by the 
practice of this Court, as soon as the writ has issued, the prosecutor of the writ, or, 
m other words, the party at whose instance it has issued, becomes the defendant, 
and the other party the prosecutor ; and even if the objection were valid, it would 
form a ground for quashing the allowance only, not the writ — the recognizance 
being entered into afler the writ has issued, but before it is allowed. This was 
decided in the case of Rex v. Abergele (5 Ad. & E. 793 ; 1 Nev. & P. 235). 

Bliss, in support of the rule. — This form of recognizance might be very proper on 
the removal of an indictment by certiorari, but it is inapplicable to the present case. 
The statute 5 Geo. 2, c. 19, s. 2, directs the recognizance to be conditioned for the 
payment of costs to the party who shall be decided to have been entitled on the 
appeal ; but this recognizance, which must be construed according to its own terms, 

(a) The argument on this and another point is case ^as in any respect distingaisbable from Reg* 

emitted, as the Court refused to entertain them, the v. The Justices of Kent (2 U. B. 686) ? And, 

rule not having been drawn up upon reading the affi- upon the latter, whether such notice had been given 

davits which raised those points. The question, how- to the Recorder as was required by the stat. ISGeo. 

--^j upon the former was, whether the clerk of the 2, c. 18, s. 5, Reg. v. How (11 Ad. & E. 159) being 

'* or the magistrates ought to have been made cited in support of the objection ?— B. 

retpondeuts on this appeal, and whether thij 



TRINITY TERM, 1844. 59 

provides that the parish shall prosecute the writ with effect and pay costs to the 
nrosecutors — that is» to themselves. [[Lord Denman, C. J. (having consulted the 
Master of the Crown Office.) — This certiorari is issued at the instance of the inhabi- 
tants of the parish of Skipton ; they are the appellant ; and the rule is to make the 
party at whose instance the writ goes the defendants, and the other party the prose- 
cutor ; this recognizance, therefore, is quite intelligible according to the practice of the 
Court; and that practice is quite unvarying. (a)] Then the writ is defective in 
omitting to name the respondents, and must be quashed upon that ground. 

Lord Denman, CJ. — All that can be required is, that the certiorari shai\ describe 
the orders in such a manner that the Court of Quarter Sessions may plainly see 
what is to be returned, and beyond all doubt there is such a description here. 

Pattbson, J. — ^It is not pretended that there is any misdescription of the order in 
this writ. 

Williams, J. and Coleridge, J. concurring. 

Rule discharged. 



Q.B. Wednesday, June S. 
The Queek v. The Inhabitants op the Township of Macclesfield. 

Tie Court of Queen'i Bench will not hear any ease sent from the Court of Quarter Sessions which 
tmdmns a proviso that in a certain event the appeal is to be sent back to be heard by the Sessions. 

ON appeal against an order of two justices for the removal of Samuel Hutchinson 
and family from the township of Macclesfield, in the county of Chester, to 
the parish of Church MinshuU, in the same county, the Court of Quarter Sessions 
qoadied the order for insufficiency in the examinations, subject to the opinion of this 
Court upon a case which ended thus: << If the Court shall be of opinion that the said 
eiaminations were so insufficient, then the said order of removal to be quashed, and 
the said order of Sessions to stand confirmed. If the Court shall be of opinion that 
the said examinations were in most respects sufficient, then the Sessions to be 
directed to enter continuances and hear the appeal.'' Upon the case being called on. 

Lord Dsnman, C. J. — We cannot have this case discussed, as we have already 
hud down the rule on the subject.(6) When the Sessions send a case here, they 
have no authority to attach the condition that in a certain event the Sessions shall 
be directed to enter continuances and hear the appeal. 

Toumsendt in support of the order. 

Davidsout contra. 

Case struck out of the Paper * 



The Queen ». The Inhabitants of the Parish op Llanbeblig. 

i/ the trial of an appeal against an order of removed an objection may be taken to the sufficiency of 
the pauperis examination^ on the ground that it furnishes no legal evidence of a settlement y where 
there is one general ground of appeal stating that the examination w, upon the face of it, ** defec- 
tive, informal, bad, and insufficient in law to support the said order;** the other grounds raising 
questions qffact only. 

ON appeal against an order of two justices for the removal of Robert Beaver, 
Mary his wife, and Robert, aged four months, their child, from the parish of 
Llanbeblig to tlie parish of Llanddeiniolen, both in the county of Carnarvon, the 
Court of Quarter Sessions quashed the order, subject to the opinion of the Court of 
Queen's Bench upon the following case : — 
It appeared that the order was made on the examination of Robert Beaver, the 

(«) The tiUc of the case {The Queen v. The Inha^ (6) Reg, v. Kesteven (3 a. B. 810), and ante, p. 8. 
iitsaU of Skipton) shews this to be the practice. 



aO IIAGISTSATES* GASES. 

ptuper, who saith (omitting the more formal matter), ''that he is the illmtimate MB 
of tne late Robert Beaver and Jane Parry> and was bom in the parish of Lbmd- 
deiniolen, in the said county, in or about &e year 1813 ; that he hatn done no act to 
gain a settlement in his own right ; that he hath a wife called Mary, and a chili 
called Robert, aged four months, and that he and his family are now chaigeable to 
the said parish of Llanbeblig." (a) The following is a copy of the grounds of ap- 
peal : — Inrst, because the said order of remoral and the examination in support 
thereof are upon the faces thereof respectively defective, informal, bad, and insufll- 
dent in law to support the said order. Secondly, because no such notice of the said 
paupers having become chargeable to your said parish, nor such copy of the ezanH 
nation taken in support of the said order, as was by law required, was given or sent 
by you or the guardians of your said parish to us, in pursuance of the statute, &c. 
llurdly, because Mary, the wife of the said Robert Beaver, was before and at the 
time of her marriage with the said Robert Beaver, and for forty days and upwards 
previously thereto, tenant, &c. (setting up a settlement by renting a tenement in a 
third parish). The solicitor for the appellants objected to the examination, on the 
ground of its being impossible for the pauper to prove of his own knowledge the time 
and place of his birth. The solicitor for the respondents, in answer to this objection, 
contended that the appellants were not in a situation to take the objection, inasmudi 
as they did not set forth specially in their grounds of appeal the specific obiection 
they had to the examination, but stated generally that it was defective, informal, 
bad, and insufficient ; and that, as a sufficient settlement was shewn upon the face of 
the examination, the objection as to its being founded on illegal evidence should have 
been specially assigned as a ground of appeal, and not in the general form as therein 
and herebefore stated. But the Court were of opinion that the above ground of ap- 
peal was sufficient to let in the appellant's said objection to the examinadon, and 
they quashed the order of removal, subject to the opinion of tlie Court of Qoeenls 
Bench as aforesaid ; and the question for the opinion of the Court of Queen's Bendi 
is, wheUier, under the first ground of appeal aforesaid, the appellants were in a 
situation to take the aforesaid objection to the examination? If tne Court should be 
of opinion that the ground of appeal was too general to allow the appellants to object 
to the validity of the examination, then the onier of S^sionsi quashing the order of 
removal, is to be quashed ; otherwisci to be confirmed. 

T. W. Saunders f in support of the order in Sessions.— There can be no doubt that 
.this examination is insufficient, as furnishing no l^al evidence of a birth'' settlement. 
Reg. V. l%e Inhabitants qfRishworth (2 Q. B. 476 ; 1 Gale Sc D. 597). But it will 
be contended tliat that objection cannot be taken under these grounds of appeal ; and 
Reg. V. The Inhabitants ^Stapleford FUzpaine (2 a B. 488; i Galedr D. 605) will 
be relied on ; particularly certain expressions used by the Lord Chief Justice in 
delivering his judgment m that case. The words used by his lordship were — ^**It 
was argued that this objection was open under the general words ' is informal, and 
wholly insufficient in law, and bad on the face of it.' We are quite clear that under 
these words, if they stood alone, no objectian would, in this case, be open to the 
appellants, for they would convey no information to Uie respondents of the ground 
of appeal intended to be relied on, and to hold them sufficient would defeat the very 
object of the statute; but those observations were only intended to apply to that par- 
ticular case, which differed very materially from the present. In that case there were 
several examinations and several grounds of appeal, but the grounds of appeal did 
not point to any particular exambation ; and although many ^rmal objections were 
stated, yet the one on which the appellants relied was altogether omitted from the 
grounds of appeal ; and the Court held that the appellanta could not, under those cir« 
cumstances, avail themselves of the general ground, having stated so many particular 
grounds of objection, because that course was calculated tp mislead the responds 
ents. Here, on the contrary, there is but one examination, and onl^ the general 
ground of appeal ; so that the ground of appeal points to that exammation, or to 
nothing at all. [Coleridge, J.— In Reg. v. Stapl^fard Fitzpame, did not the Court dis- 
tinguish that case from another where there was only the general ground of appeal?] 
(a) See Eif, v. Bigh JHckingtm, ante, p. 1. 



TBINITY TE£M» ISU. 61 

Fiom the case of Reg. ▼• Middleton in Teesdale (10 Ad. & E. 688)> which was a 
CMe sioiibr to the present. In Reg. v. EcdesaU Bierlow (II Ad. & B. 607), the same 
objection as to hearsay evidence was taken; and there likewise there was only the 
general ground that the examination and onler were, ** on the faces thereof, respec- 
tifdy had, informal, and insufficient ;" but the Court held it sufficient to let in the 
djjection. The real question is, whether the ground of appeal gives such informa- 
tioQ as will direct the attention of the respondents to the objection intended to be 
mde; that is all that is necessair; and in this case that information is certainly 
pren. Upon the authority, therefore, of the case of Reg. y. Middleton in Teesdale, 
which has since been fully confirmed in Reg. ▼. The Inhabitants of Flockton (2 
Of B. 535), this order of Sessions must be coonrmed. 

Nobody appearing on the other side, 

LoBJD DsNMANy C J. — I think the parties have done quite right in not incurring 
fivtber expense by appearing here to oppose this order. The Sessions have come to 
die ripht conclusion — a conclusipn not mconsistent with any of the authorities. The 
wsmination is obviously insufficient ; it furnishes no legal evidence of a settlement, 
nd it is objected to in general terms. It was impossible for the parties to doubt what 
«s meant. 

Order of Sessions confirmed. 



Ths Qoxbn v. Thx Inhabitahts of Stoke Bliss. 

Wkre the appellenttf qfter notice of apptai, give notice qf cotmiermand too tote according to the 
fmtSee tif the Seetume, the Seetioni have no right to cot^rm the order qf removal, or to give 
gmmd eoeies though they mag give the coete qf the dag oceaeioned bg the countermand under the 
$if9 Wm. 3, c. 30, t. 3, which it umUteredbg 4 ^5 Wm,4, c. 76. 

A WRIT of certiorari had issued to bring up to this Court, from the Quarter 
Sessions of Staffordshire, an order whereby the Sessions had confirmed aa 



of removal and ordered payment bv the overseers of the appellant parisb 
sf the costs of the said order. The order was to remove a pauper from the 
tnmsbip of King's Swinford to Stoke Bliss. 

Notice and grounds of appeal had been served in due time for the hearing of thia 
sat the last January Sessions, which was to take place on Thursday, the 4th of that 
1. On Tuttday, the 2nd, the appellants gave notice of countermand of appeal, 
J to the absence of a material witness. A rule of the Stafford Sessions, however, 
iMoirea three days' notice of countermand, and hence the service on Tuesday, the 
Up was a day too late. This was admitted by the appellants, who expressed an 
■CentioQ of prosecuting the appeal upon the actual removal of the pauper, who had 
sot then been removed. 

Upon the appeal being called on, the respondents applied for costs under 8 & 9 
WsDL 3, c* SO, s. 3,(a) and the Sessions made an order to this effect : — " That the 
orier made by the said justices be confirmed^ and that the churchwardens and over- 
Mn of the parish of Stoke Bliss pay to the churchwardens and overseers of the 
psiidi of King's Swinford the sum of lU. 10s. for the costs and charges they have 
acnrred and been put to in attending the Court this day in support of such order, 
IteT 

This order havine been removed by certiorari^ a rule had been obtained to shew 
cause why it should not be quashed* 

WUimare and Allen shewed cause.— There was proof of notice of appeal according 
JO die statute, and the Sessions had clearly jurisdiction to give costs, although the 

(•) Tbis ftBtnte enacts :— " That the jnetSoet of and order to the party for whom and in whose be- 

ktMMa, &e. npoB proof of notice of any mich ap- half each appeal sbaU be determined, or to whom 

•^clvaibv the proper oAeer to the diiirehwardens such notioe did appear to have been given, as afore- 

r •tcneera of the poor of any parish or ptaea said, snchcostsin the law as by the said justices in 

Ihiigt they did not afterwards proseenta snch ap- thdr disoetion shall be determiacd." 
aal), siMdl, it the same Qnartw Scaslaas, swaid 



62 MAGISTRATES' CASES. 

appellants did not prosecute their appeal. The confirmation of the order was 
admitted to be bad ; but if that be so, it is severable from the order for costs. Two 
orders are in fact written on the same piece of paper ; that which treats of costs is 
good, and is a case the Act contemplates: the other may be treated as surplusage. 

W. H, Cooke, contra. — The Sessions were clearly misled somewhere. They had 
no right to make any such order at all. (Rex v. The Justices of West Riding {Shef- 
field V. Crich), 3 Gale & Dav. 170.) The confirmation of the order of removal was 
wrong, and the costs are ancillary to the confirmation, and wrong also. Since the 
New Poor-Law Act there are but two periods for appealing — on the receipt of the 
order, and on the removal of the pauper. (Reg* v. The Justices of Middlesex, 9 
Dowl. IGS.) Here there has been no removal yet, and it is competent to the 
appellants to appeal when there is, and to recover these costs, if there is a decision 
in their favour, which they are now ordered to pay. It was otherwise before the 
passing of that Act ; and the 8 & 9 Wm. 3, c. 30, has reference only to cases where 
the order is abandoned or determined, and does not give the Sessions power to 
award the costs of the order where there is no judgment given. At any rate, the 
costs are here ancillary to , an order of confirmation, which the Sessions bad no 
right to make, and the one order cannot be dissevered from the other. [PATTESoy, 
J. — How do they come to another Sessions for their costs? Supposing you do not 
appeal, how can the respondents get these costs ?] By waiting till we have had 
proper time to appeal ; and if we do not go, then by appealing themselves at 
the next practicable Sessions ader the notice has expired. [Coleridge, J.— 
This order seems to be made independently of what shall be done afterwards.] It 
was the intent of 8 & 9 Wm. 3, c. 30 to authorize the Sessions to give costs against 
JBL parish vexatiously appealing. This has been altered by the 4 & 5 Wm. 4, c. 76, 

Lord Denman, C. J. — The order of removal being appealed against, the appel* 
lants countermand the notice of appeal before the hearing of the case, but not in time 
according to the practice of the Sessions. They attend the Sessions, and the justices 
confirm the order of removal and give costs. It is contended, that though the con- 
firmation may be bad, the order for the costs may stand good. But we think that 
the order for costs was ancillary to the judgment of confirmation, and that in thus 
ordering the payment of costs the Sessions have done what they had no power to do. 

Patteson, J. — The order is clearly wrong, as the Sessions had no power to give 
these costs. At the same time, I am far from saying that the Sessions might not 
have given some costs, for the Poor-Law Act has not done away with the powers 
given to the Sessions by 8 & 9 Wm. 3, c. 30. (a) If the order had been simply for 
the costs of the day it would perhaps have been correct. 

Williams, J.— It is the safest way to look in this case to the documents them- 
selves which the Sessions have sent up, and not merely to the affidavits, with which 
the Court is often very much encumbered to very little purpose. It appears by the 
documents that notice of appeal having been given before the removal of the pauper, 
just previously to the trial, an important witness for the appellants being absent, they 
give notice of countermand of trial ; but they do this a day later than the time 
appointed for that purpose by the practice of the Sessions. The appeal comes on in 
consequence and the Sessions make an order confirming the order of removal, and 
giving to the respondents the entire costs expressly upon that confirmation of the 
order of removal. They had, however, no right so to confirm the order of 
removal, and 1 concur with mvlord and my brother Patteson, that the order for costs 
being thus ancillary to the judgment of confirmation, both are bad. 

Coleridge, J. — An order might have been several ; and one part might have 
been confirmed and the other quashed, but it is not so here. 

Order quashed. 

(a) The 4 & 5 Wm. 4, c. 76, s. 82, enacts that, cannot be said that the appeal was " decided" either 

upon appeal, "the Court before whom the same way; stillit was reasonable and just that the parish, 

shall be brought shall and may, if they think fit, piling defective notice of conntermand should pay 

order and direct the parish against which the same some costs for the results of that defect, as far as 

shall be decided to pay to the oth^r such costs, &c.. they went. For such a case this decision is an au* 

as may to such Court appear just and reasonable.'* thcrity hcicf forth. — S. 
The Act does not provide for this case at all. It 



TRINITY TERM, 1644u 63 



The Queen v, Thomas Rose. 

hi ike 27 iM section qf the Highway Acti 5^6 Wm, 4, c. 50, the provision for assessing woods to the 
road-rate which have been ** usually rated** applies to the usage as to the woods in the particular 
parish in which the rate is made, and not to the usage in the kingdom generally, 

AN appeal by Henry Philip Powys, Esq., to the Oxfordshire Quarter Sessions, 
liolden in January last, against a highway-rate, roade by Thomas Rose, on the 
16th of November, 1843, as surveyor of roads, in the parish of Whitchurch, in the 
counties of Berks and Oxon, whereby the said H. P. Powys, Esq., was assessed in 
the sum of 1/. 48., being at the rate of 6d. in the pound on a rateable value of 48/., 
Id respect of certain woodland. The Sessions allowed the appeal, and ordered the 
rate to be " amended by striking out the word and sura, * woodland, 48/:' and by 
altering the aggregate amount of the annual value of the several properties in 
respect of which the said H. P. Powys is thereinafter rated from the sum of 407/. Is. 
to the sum of 359/. Is.," subject to a case for the opinion of this Court. 

The rate in question was assessed upon certain timber woods in Whitchurch, 
vfaidi were not saleable underwood, under the 43rd Elizabeth, nor liable to be 
xated to the poor-rate, either at the time of the passing of 5 & 6 Wm. 4, c. 50, 
«r of the making of the highway- rate in dispute ; neither had the woods been rated 
U> the highway-rate from 1809 until the year 1840, when, under 5 & 6 Wm. 4, 
CiSO, the appellant, being then surveyor, rated himself in respect of these woods 
aad paid the rate. The case stated that ** timber woods of a similar description to 
tboK occupied by the appellant have always been rated to the repairs of the hi^h- 
vxy ID the majority of the parishes in the country and neighbourliood, but in some 
they have not been so rated since the year 1809. It was admitted, that if the appellant 
was rateable in respect of the woods in question, the amount of the rate was fair, 
and the only question between the appellant and respondent was, whether the 
appellant was rateable in respect of such timber woods." 

fiy 13 Geo. 3, c. 78, rates are directed to be levied upon all occupiers of land, 
tenements, tooods, tithes, &c ; and by 34 Geo. 3, c. 74, which is explanatory of the 
fimner Act, the surveyor and occupiers of lands, tenements, woods, and tithes, are 
directed to use endeavours to repair the roads, and are to be chargeable thereto and 
to perform statute duty, or pay a sum in lieu thereof. The 44 Geo. 3, c. 62, s. 2, 
provides for compounding the statute duty. By the Highway Act, 5 & 6 Wm. 4, 
c. 50, 8. 27, it is enacted, that ** a rate shall be made, assessed, and levied by the 
surveyor upon all property now liable to be rated or assessed to the relief of the 
poor ; provided that the same rate shall also extend to such xooods, mines, and 
Qoarries of stone, and other hereditaments as have heretofore been usually rated to the 
Ughvoays." And by the 33rd section of the same Act it is provided, that occupiers 
who, previously to the passing of this Act ^August 31, 1835\ shall have b^en 
exempt frona the statute duty, or payment in lieu thereof, or of highway-rate, such 
property, and the owners and occupiers thereof, shall be exempt from the highway- 
nte imposed by this Act. Previously to 1809, beech woods had been assessed in 
the parish of Whitchurch to the poor-rate, but it was then decided that beechwood 
was timber, and not assessable. But in some neighbouring parishes, beech woods 
hd been and still are usually rated to the highway-rates. 

Keating^ in support of the rate. — The entire question rests upon the meaning of 
the wor£ in the 27th section of the Highway Act, " woods heretofore usually 
rated to the highways." This must refer to what has been usually rated by law in 
the kingdom, and not to what may have been the local custom of the particular 
parish. [Coleridge, J. — What is meant by usually rated by law ?] Absolutely 
lated by law. In 13 Geo. 3, c.78, the justices are to cause an equal assess- 
iDent, not upon any particular parishes or people, but upon aU occupiers of lands> 
Woods, &c. for the relief of the poor. In the subsequent statutes down to the last 
Highway Act, the word " woods" uniformly occurs; so that it cannot be contended 
that woods were not rateable at the passing of the Highway Act. There is no case 



ei MAamsATES' cases. 

or statute giving colour to such a supposition; and it is plain that woods are included 
in the 27th section, for in the 3Srd section the cases of exemption from statute 
duty, in respect of woods, are expressly provided for, and it not being stated that 
Mr. Powys is exempt on that ground under the SSrd section, he is clearly rateable 
under the 27th section, for it makes rateability to the poor-rate the test of rate- 
ability to the road-rate, and woods were clearly rateable under the statute cited as 
previously existing. These woods have been rated from the passing of the Act in 
1885 till 1843. [Patteson, J.— But were they rated after the year 1809?] No ; 
but that rested on a decision as to beech being timber and not saleable under- 
wood.(a) There will be great inconvenience to the surveyor to know if he is to rate 
woods or not according to a varying custom in particular parishes. The general 
intent of the statute will be regarded: it is difficult to conceive why an Act for the 
whole kingdom should make general rates depend on local rules. [Coleridgb, Jw«^ 
Do you consider the words ** usually rated" to mean usuaWyrateaUef What was 
the state of the law before, when woods were not usually rated?] Perhaps tiie 
statute intended to exempt some wood. Before the statute passed, labour was 
often given instead of rates; but since the statute has been abolished, many of 
these persons would be exempted by the construction sought to be put on the Act^ 
for such woods held by such occupiers have not been rated at all in jparticolar 
parishes. There would be no inconvenience or difficulty for surveyors if it were 
declared that they are to exempt no property not specially exempted; this woidd 
put an end to the conflict of opinion among the Sessions as to the pieriod of custom; 
some thinking that three years' and some five years' rating constituted '< ^i*^>BOy 
rated." [Coleridge^ J.— Suppose the word '* wood ** stood alone. Then itwodtt 
be entirely a question of fact] That must refer in such case to general and not to 
local usage. [Pattesok, J. — Suppose that all the wood in a parish had always becB 
rated^ and that some timber was grown afterwards of another description; would tint 
be rated?] Yes, just as. a new house would be rated. [Patteson, J. — One ooil- 
struction may be, that such particular woods have not been rated.] That cooH 
hardly have been the intention of the legislature. It must be assumed that siD 
woods are legally rateable except such as are usually exempt. 

Waleshy (with whom was Phin), contrd. — It is scarcely possible that any argument 
can go beyond the language of the statute itself. The 27th section of the Act givetr te 
surveyor all his power ; it is a question of usage and fact submitted to him, what woods 
have been rated in the parish with which he has to do. Besides, the legislature has 
always favoured woods. 

Lord Dbnman, CJ. — We are called upon to put a construction upon thisstatoie^ 
which we find it impossible to do satisfactorily. Here are two sections ; the 2Wl 
seems to assume that woods have been usually rated, and the SSrd applies to cases 
where they have not been rated to highways. I do not know that we can do othei^ 
wise than follow the literal meaning of the words, and decide that " usually rated^ 
must apply to what has been the usage in the parish where the rate is assessed. 1 
do not think that this rule is difficult of application by the surveyors of each paridu 

Patteson, J. — The words " usually rated" must apply to Uie particular parish, aod 
to the usage there. It appears that from 1809 till the Act passed, woods of thb 
description have not been rated in this parish, and cannot be said to have been usudly 
rated there. 

Williams, J.— We cannot change the facts. I know of no other mode of treating 
this question than by deciding that the rate is leviable according to the usage in 
the particular parish. I am of opinion, though not without considerable doubt, that 
the literal meaning is that which it is in this case right and safe to adopt. It has 
the advantage of being easy of applicadon, for, notwithstanding what Mr. Keatiiu^ 
says, it requires much less consideration to ascertain what is the usage of the parisE 
than in the whole neighbourhood ; and the particular usage may be more eas3y 
proved when the rate is to be assessed, or upon the trial, if an appeal comes on. 

Coleridge, J. concurred. Order confirmed. 

(a) Anhrtif ▼• FUher and Oiken, 10 Eatt, 446 ?--S. 



TRINITY TERM, 18U. 



Q.B. Thursday, June 6. 
The Quebn v. The Justices of Merionethshire. 

4fter «frtief of notice and grotmdi qftytpeal agmmi an order of removal^ a supertedeas of the order 
wn eerved on ike appellani pariih ; no offer a» to eosta was then made; but three daye brfore the 
mmomg a turn of 2/. was tendered to the appellants for their costSf and refused. The Court qf 
(Quarter Sessions refused to enter the appeal, on the ground that the practice of the Court was not 
to aliow more them 30t. costs. Held, that the Sessions had acted illegally in refusing to enter the 
eppealf and that they were hound in every ease to exercise their discretion as to the amount of 
eeets to which either of the parties might reasonably be entitled. 

WELSBY obtained a rule in last Easter Term» calling upon the justices in and 
for the county of Merioneth to shew cause why a writ of mandamus should not 
iKne. commanding them to enter, as of the last General Quarter Sessions, the appeal 
of the churchwardens and overseers of the poor of the parish of Denis, in the county of 
CiniarTon^ against an order of two justices for the removal of William Williams, 
lltij his wife, and their son Robert, and to enter continuances thereon^ and to hear 
and determine the merits of the said appeal. 

From the affidavits in support of the rule, it appeared that on or about the 10th 
Ittmaiy, 1844, an order was made by two justices, removing William Williams, his 
irife and child> from the parish of Llaogar, m the county of Merioneth, to the parish 
d Denis* in the county of Carnarvon ; but the execution of the said order was sus- 
paled in consequence of the illness of the pauper, William Williams. On the SOth 
af Jhuiary a notice of appeal, and on the 19th of March grounds of appeal were 
awed upon the churchwardens and overseers of the parish of Llangar ; and on the 
fMi of March a supersedeas of the said order was served upon the churchwardens 
■id overseers of the parish of Denis, on account of the insufficiency of the examina- 
lioB upoD which the said order had been made ; but no tender or ofier of the costs, 
which had been incurred by the appellant parish, was then made on the part of the 
parish of Llangar. It further appeared, that on the 1st of April another order was 
aade for the removal of the same paupers from the parish of Llangar to the parish of 
Denisy the execution of which was also suspended on account of the illness of the 
pauper, William Williams ; that that order, with a copy of the examination, and the 
notice of chargeability, were served on the churchwardens and overseers of the pa- 
ridi of Denis ; and that on the 9th of April a sum of 21. was tendered on behalf of 
die churchwardens and overseers of the parish of Llangar^ to the churchwardens 
and overseers of the parish of Denis, for the costs incurred by them in the pro- 
lecotion of their appeal against the said first-mentioned order of justices, which 
SUB was refused on the ground that the costs incurred by the said church- 
wardcDS and overseers of the parish of Denis amounted to a much larger sura of money 
tlaD2/L That at the General Quarter Sessions of the peace for the county of Merioneth, 
heU on the 12th of April, 1844, the churchwardens and overseers of the parish 
of Denis attended with their attorney and witnesses; that an application was then 
■ade on their behalf to enter their appeal against the said first-mentioned order ; 
tttt that application was opposed on the part of the respondent parish, on the 
gnmnd that a supersedeas nad been served on the appellants, and was, as well 
ai an application for their costs, amounting to 26L 3s. 4d., rejected by the Court* 

In answer to these facts the affidavit of the attorney on the other side 
Itited that '< there is, and has been for a great many years past, a standing rule 
or order on the books of the Quarter Sessions of the Peace for the said county 
rf Merioneth, whereby it is ordered that the sum of 308. only, as and for 
costs and expenses, shall be allowed, in appeals against orders of removal tried in 
Ae said Court, to either party, and that it is the general practice of the Court 
tt act upon such rule." And further, that the sum of 21. having been tendered by 
the respiondents, the Court on that ground refused to enter the appeal ; but no copy 
of that role was produced, nor was any affidavit made as to the practice by any officer 
of thai Court. 



03 KAGISTRATES* CASES. 

Jervis, Q.C. on behalf of the respondent parish, now shewed cause. — ^The fiacts of 
this case are quite peculiar : the Court of Quarter Sessions had laid down a rule of 
practice not to allow more than 30s. for costs in any case ; and the appellants, not- 
withstanding that rule, refuse a tender of 21., and insist upon entering their appeal. 
This is, therefore, quite distinguishable from the recent cases in which this Court has 
decided, that aftar the abandonment or supersedeas of an order the appellants have 
still a right to go to the Sessions for their costs, (a) The Court of Quarter Sessions 
very properly said to the appellants, " You might have had 2/. instead of 30s. ;'' and 
if this writ should go, they would obey it by entering the appeal and giving the appel- 
lants 30s. for their costs. Is this then a case in which the Court of Queen's Bench 
will interfere ? Suppose that instead of a tender of 2/., a tender had been made of 
all the costs incurred by the appellants ; would the appellants have been entitled to 
refuse that tender and enter their appeal, or would this Court have compelled the 
magistrates to hear in that case ? Yet, substantially, there is no difference between 
the two cases. 

Yardley, on the same side, appeared for the justices. 

Welshy, contrk. — First, as to the facts, it is to be observed, that no tender of any 
sum was made until within three days of the Sessions, a considerable time after the 
supersedeas had been served, and that there is no very satisfactory evidence as to the 
alleged rule of practice. No copy of this rule is produced, nor is any affidavit made 
by any officer of the Court, but the matter rests entirely on an affidavit made by the 
attorney for the respondents. Even according to the statement in that affidavit the rule 
seems to apply only to appeals actually tried ; and at all events, to leave it open to the 
Court to depart from it under circumstances of peculiar vexation. But, secondly, the 
cases of Reg. v. Tovmstal and Reg. v. Stayley (3 Q.B. 357) are conclusive authorities 
to shew that the appellants had a right to enter their appeal at the Sessions, and that 
the justices were bound to exercise their discretion as to the proper amount of costs ; 
and it is hardly possible to suppose that, if this writ should go, the justices would 
adhere to their nile. [Coleridge, J. — We don't interfere as to the amount ; and 
when I W£^ at Sessions, costs were never given on a remunerating principle; 
generally the costs would only be 40s., though 100s. had been actually spent.] The 
modem practice is rather the other way ; but the appellants had a right to enter their 
appeal : the justices ought to have heard it, and exercised their discretion as to the 
amount of costs. [Jervis, — So they did, upon the motion for leave to enter the 
appeal.] The question of costs could not arise until after the appeal had been entered. 
[Yardley. -^In Rex v. The Justices of Norfolk (5 B. & Aid. 484), Bayley, J. said that 
it was entirely in the discretion of the justices, either to enter the appeal or not, so 
as best to answer the ends of justice.] That case was considered in the case of Reg, 
V. Tow7istal and Reg. v. Stayley , and overruled. 

Lord Denman, C. J. — Mr. Welsby observes that it is not clearly shewn what the 
general practice of the sessions really was ; but from what took place at the time, I 
think we must conclude that the justices considered what the practice was, and 
thought that they were acting legally according to it ; but the question is, whether 
they were acting legally, and I think that they were not. They were bound to 
allow the appeal to be entered ; and after this writ has issued, unless they can shew 
some better cause than they have shewn now, I cannot doubt but that a peremptory 
mandamus would be granted. It is quite clear that they ought to exercise their 
judgment in each case as to the amount of costs to which a party may be reasonably 
entitled. It is very proj)er that parties should be at liberty to abandon orders of 
removal on finding them insufficient, reserving, however, to the other side the right 
of recovering all reasonable costs incurred by them up to that period. 

Patteson, J. — I do not see how, consistently with the cases cited, we can reject 
this application. ITie appellants may in consequence get less ; but we have nothing to 
do with that. 

Coleridge, J. — ^The justices were clearly wrong in refusing to enter the appeal ; 
however, I am not sure that we should be warranted in letting this writ go, if we 
thought that the Sessions would adhere to their rule of practice ; but that practice is a 
(a) Reg. v. The Inhabitants of Toumstal; and Reg, v. The Inhabitants qf Stanley 1 3 Q,, B, 357. 



TRINITY TERM, 1844. 67 

Tcry unreasonable one, and there is every ground for supposing that, after the intima- 
tion which has been given of the opinion of this Court, they will alter it, and give to 
the appeUants costs according to a reasonable principle of remuneration. 
WiGHTMAN, J. concurring. 

Rule absolute. 



Q.B. Saturday, June 8. 

The Queen v. The Governors and Directors op St. Andrew's, Holborn^ 
Above-bars, and St. George the Martyr, and their Collectors. 

Wken the relirfand management of the poor of a parisht forming part of a Union under the Poor^ 
Imp Amendment Act, was vested in a board of governors and directors by a local Act, which also 

. empowered the inhabitants to appoint auditors who were to examine the accounts, and had power, 
if they saw ground to disapprove of any part of them, to appeal, but no power to disallow items — 
the board of governors and directors, having accounted to the auditor appointed under the local 
Act, were held bound to render an account also to the auditor appointed, under an order of the Poor^ 
Lew Commissioners, for the Union of which the parish formed a part; and as there was but one 
rate levied in the parish nominally for the relirf of the poor, though in fact raised for various other 
ptarposee as well as the relief of the poor — an account confined to so much of the money raised as 
was intended to be and was applied to the relief of the poor, was held an insufficient account. The 
aeeount under such circumstances must include all the money raised, to whatever purpose applied or 
intended to be applied, 

MANDAMUS to the above defendants, appointed and invested with certain powers 
for the relief, government, and management of the poor in the united parish 
d St. Andrew, Holborn, Above-bars, and St. George the Martyr, under the stat. 6 
Geo. 4, c. clxxv. •* An Act for the better ascertaining, charging, and collecting of 
tiie Rates for the Relief of the Poor within that part of the Parish of St. Andrew, 
Holborn, which lies above the Bars, in the County of Middlesex, and the Parish of St. 
George the Martyr, in the said County, for the better Maintenance, Employment, and 
Regulation of the Poor thereof, and for regulating the nightly Watch thereof."(«) 

The writ recited that the defendants, who were in office as governors and directors of 
the poor of the above parishes, on the 23rd January, 1838, had acertained, charged, 
and collected divers sums of money as poor-rates, and had managed the same, and 
had appointed the other defendants to be collectors ; that the said parishes had been 
formed into a union, under 4 & 5 Wm. 4, c. 76 ; and that the said defendants had 
refused to produce to James Hales Mitchener, an auditor, appointed by the Poor- Law 
Commissioners, a full and distinct account of all moneys, matters, and things committed 
to their charge, or received and expended by them on behalf of the said parish, so far 
as related to the moneys assessed for the relief of the poor, and commanded them so 
to account. 

The return stated, in substance, that the rates assessed by them, commonly called 
the poor-rates, were by law and the provisions of the said local Act applicable to 
other purposes, wholly unconnected with the relief of the poor ; that all the moneys 
assessed for the relief of the poor were paid over by the defendants to, and managed 
by, the Board of Guardians appointed by the Poor-Law Commissioners, and that the 

(«) The followiDg are the material sections of that poor, the other for the payment of the expenses of 

let :— the watch. 

By sec. 12. It is provided that the goTemors and By sect. 30, That, on certain days in the 5th sec. 

•Sectors of the said parish, &c. are to meet in Au- specified, the said inhabitants are to elect five 

gust and Febroary to calculate, ascertain, and settle auditors, vrho are to meet in September and March 

the amoant requisite to be assessed, as well for the and audit the accounts ; and in case the auditors 

i*ef, maintenance, lodging, and employment of the shall think there is just cause to disapprove of any 

poor, and regulating a nightly watch, as for dis- part of the accounts, it shall be lawful for the said 

ehaxgini; any debt previously incurred and remaining auditors, or the major part of them, to appeal 

vaatisfied. against the said accounts, provided that no appeal 

By sec. 13, That within twenty days after such against such accounts shall be made by any person, 

•sou shall have been so ascertained, the inhabitants except the same shall be directed and agreed upon 

•hiB make two rates : one for the relief, &c. of the by the auditors, or the major part of them. 



m 1CAGI9TRATE8* CASES. 

defendants liad duly aoocmnted to the auditors appointed under the said local Act ; 
the defendants further retnmed, that they made an account to the said J. H. Mitdienflr 
of an moneys committed to their charge or expended by them, so fiir as related to tlie. 
moneys assessed for the relief of the poor. 

The replication of the said J. H. Mitchener (the prosecutor) traversed the payment 
to the Poor-Law Guardians, and also the account made to him. Issues being joined, 
tiie return was tried at the sittings in Middlesex, after Michaelmas Term, 1840, before 
Coleridge, J., when the jury were discharged from giving a verdict on the first issue, 
and a verdict was found for the Crown on the second issue, subject to the opinion of 
the Court upon a case, of which the following are the material parts. After the 
passing the stat. of 4 & 5 Wm. 4, c. 76, the Poor-Law Commissioners, duly appointed 
and acting in execution of tiiat Act, by an order, duly signed, &c., dated the 26th of 
March, 1836, in pursuance of the powers of that Act, oi^ered that the parishes and 
places following — ^that is to say, St. Andrew, Holbom, above the Bars, St. George the 
Martyr (and ol^er places, naming them), should, on ^e 27th day of April then next, 
be, and thenceforth remain, united for the administration of the laws for the relief of 
the poor, by the name of the Holbom Union, and that a Board of Ghiardians should be 
appointed and chosen for such union as therein mentioned. The commissioners, by a 
farther order, dated the 20th day of April, 1836, ordered that the guardians of the 
said Holbom Union should, subject to the approbation of the said Poor-Law Com- 
missioners, appoint a sufficient number of persons to perform the duties thereinafter 
specified to belong to each of the offices thereinafter mentioned, including, amongst 
others, the office of auditor ; and thereby ordered that the duties of the auditor, to be 
so appointed by the said guardians, should be, firstly, to audit the accounts of iHe 
said union, and of the several parishes comprised therein, at proper periods ; secondly, 
to examine whether the expenditure, in all cases, was such as might lawfully be made, 
and to strike out such payments and charges as were not authorized by some pro* 
vision of law, or by virtue of the orders, rules, and regulations of the Poor-Law 
Commissioners ; thirdly, to see that the accounts were presented in the proper form* 
and that the particular items of receipt and expenditure were stated in detail and 
supported by adequate vouchers of receipt and authority for payments, and that all 
sums receiv^ were brought into account. The Poor-lAw Commissioners, by a sub- 
sequent order, dated 7th July, 1836, appointed an auditor for the several unions in 
ihe said last-mentioned order named, of which the Holbom Union was one. The 
relief, government, and management of the poor in the said parishes were, at the 
time of the passing of the Poor-Law Amendment Act, and of the making of the said first*- 
mentioned order of the Poor-Law Commissioners^ vested in a Board of Governors and 
Directors, constituted and appointed under the powers of a local Act of P&rliament» 
made and passed, &c. [the stat. 6 Geo. 4, above mentioned, which was made part of 
ihe case.] After the stat. 10 Geo. 4, c. 44, intituled " An Act for improving the 
Police in and near the Metropolis," came into operation, no rates were made within 
ttte said part of the said parish of St. Andrew, Holbom, and the said perish of St. 
George the Mart3nr, for defirayingthe expenses of the watch within the same under the 
said local Act, the functions of such watch having been superseded by the police force 
appointed under the said Act, and the expenses of such police force having been made 
payable out of the poor-rate under the 23rd, 24th, and 25th sections of the general 
Act, and no separate watch-rate was afterwards made by the said governors and 
directors, but only one rate was from thenceforth made imder the name of the poor- 
rate, out of which the said governors and directors paid as well the sums required for 
ihe relief, maintenance, lod^ng, and employment of the poor of the said part of the 
said parish of St. Andrew, Holbom, and the said parish of St. George the Martyr, as 
the contribution required for the force, the contribution required for the county rates, the 
interest upon moneys theretofore borrowed, and annuities granted by the said governors 
and directors under the said local Act, and all other expenses incident to the canying the 
said local Act into execution ; and this was the course pursued by the defendants as 
govemors and directors whilst they were in office — ^that is to say, fix)m Friday next after 
the 25th day of March, 1837, until Friday next after the 25th day of March, 1838. 



TRINITY TEBM^ 18U. 69 

On the Friday next before the 25th March, 1 837, the defendants, who are described in the 
writ as the goTemors and directors who were in office on the 23rd of January, 1 838, were, 
at a meetiBg duly holden for that purpose, duly constituted and appointed the governors 
and directors of the poor of the said part of the said parish of St. Andrew, Holbom, 
and the said parish of St. George the Mart3rr, for the ensuing year, and took upon 
tiiemselyes that office. The defendants, the said governors and directors, after their 
i^ipointment, and during their year of office, and before the 23rd of January, 1838, 
made one assessment or rate, in the form and under the title of a poor-rate. Before, 
and for the purpose of making this rate or assessment, the governors and directors met, 
inporsnance of the 12th section of the local Act, to calculate, ascertain, and settle 
the amounts which would be required for the different purposes to which the intended 
nte was by law applicable, viz. the relief of the poor, the county rate, the police rate, 
tiie payment of part of the principal and interest on debts already charged upon the poor- 
nUes, and the salaries of officers, and other expenses hereinafter mentioned. At this 
time the governors and directors were engaged in law proceedings, for the purpose of 
oontesting, under the advice of counsel, the validity of the Poor-Law Commissioners' 
oniera above mentioned, for and relating to the union of the above-mentioned district 
vith pother places; and amongst other items of estimated expenditure, from the 
proceeds of the said intended rate, the sum of 700/. was calculated by the said 
gofemors and directors to be required for law expenses in relation thereto. At the 
arid meeting of the governors and directors, held for the purpose aforesaid, the sum of 
^79/. was calculated, ascertained, and settled as the amount which would be required 
t» be assessed and charged for the relief of the poor under the directions of the Board 
«C Ooardians in the said parish, and to be paid to them under the precepts made 
aid to be made from time to time. After the governors and directors had met for 
the purposes aforesaid, according to section 12, the respective amounts, so settled 
ad ascertained by the said governors and directors, were submitted to a meeting of 
the inhabitants duly held pursuant to sect. 13 of the local Act, and upon such several 
estiBiates the said inhabitants, at the said meeting, made the assessment hereinbefore 
particularly mentioned and described at the rate of Is. 2d. in the poimd, for the 
purpose of raising the several sums of money required for the several purposes afore- 
aid. Ilie total aggregate amount of the said rate, supposing the whole to be col- 
lected, would be 6,799/. 4s. 6d., or thereabouts ; but, after allowing for all usual and 
reasonable deficiencies in collecting, it would produce, and did, in fact, produce the 
sua of 6,246/. 13s. 3d., or thereabouts, of which amount the governors and directors 
appropriated for the purpose of being paid over to the guardians of the said Holbom 
Union, for the relief of the poor in the district of the said governors and directors, the 
said sum of 3,679/. so calculated, ascertained, and settled by them at their meeting 
£ar that purpose as aforesaid ; and the residue thereof they appropriated and applied 
for the various other purposes hereinbefore mentioned, and in respect whereof the said 
aaaessment had been made as aforesaid — ^that is to say, to the police-rate and county* 
rate the payment of part of the principal and interest, and annuities, in respect of the 
dd>ts charged upon the rates made under the said local Act, and salaries to officers, 
and other expenses attending the carrying the said local Act into execution, and law 
dmxges, such as appeals against rates, and the like, but chiefly in reference to the 
aid litigation with the Poor-Law Commissioners. Various demands were duly made 
on the said governors and directors, who were in office on the 23rd of January, 1838, 
before that time, for the payment of sums of money required by the Board of Gruar« 
dians of the Holbom Union, for the necessary relief of the poor of the said part of the 
laid parish of St. Andrew, Holbom, and parish of St. George the Martjrr, and for the 
payment of their quota of the general expenses of the workhouse of the said Holbom 
Union ; but such sums were not paid at the times when they were required to be paid, 
by reason of the pending litigation as to the validity of the conmiissioners* order for 
the making of the said Holbom Union. After the validity of the said order had been 
eatabHshed, and before the issuing of the said writ of mandamus in the present case, 
the amount of the sum so demanded had been paid up to the guardians of the union. 
After the issuing the writ of mandamus in this case, and before the return thereof, viz. 
€Q the 23rd July, 1839, the said James Hales Mitchiner, who had been, on or about 



70 MAGISTRATES* CA8E& 

the 28th day of July, 1836, chosen and appointed auditor for the various parishes and 
unions mentioned in the said order of the Poor- Law Commissioners of the 7th July» 
1836, including the said Holbom Union, and who continued to hold and execute the 
office of such auditor of the said parishes and unions, including the said Holbom 
Union, attended at the workhouse of the said part of the said parish of St. Andrew^ 
Holbom, and St. George the Martyr, for the purpose of auditing the accounts thereof, 
of which intended audit due notice had been given to the said governors and directors 
then in office, and their said collectors, and they were duly required to produce to the 
said J. H. Mitchiner a full and distinct account of all moneys, matters, and things com- 
mitted to their charge, or received, held, or expended by them on behalf of the said 
parishes, so far as related to the moneys assessed for the relief of the poor. On that 
occasion, Mr. Charles Boydell, as clerk to, and on behalf of, the governors and directors 
of St. Andrew, Holbom, attended the said James Hales Mitchiner, the auditor, and 
rendered to him an account [of which a copy was inserted in the case] . The credit 
side of the above account contains a correct statement of the sums paid by the 
governors and directors, at the times therein mentioned, to the guardians for the 
relief of the poor, but contains no account of the other applications of the money 
raised as above mentioned, under the name of* " poor-rate," although considerable 
simis had, during the period embraced by the account, been expended by the gover- 
nors and directors for ^e various other purposes above mentioned, including the law 
charges before referred to. The sums mentioned on the debit side of the account as 
assessed for the relief of the poor formed the whole amount of the various sums cal- 
culated, ascertained, and settled by the govemors and directors as necessary, according 
to their judgment, to be assessed and charged for the relief of the poor as aforeaid, 
under the 12th section of the local Act; but they form only part of the sums 
calculated, ascertained, and settled by the said govemors and directors to be assessed 
and charged, which were accordingly assessed and raised by the said inhabitants under 
the said local Act, under the name of " poor-rate," for the various purposes herein- 
before mentioned, including such law charges as aforesaid. The said James Hales 
Mitchiner then demanded an account of the entire sums that had been collected under 
the name of *' poor-rate," and how they had been expended, and required to see the 
whole poor-rate, and the various books relating to it. The said Charles Boydell an- 
swered, that the above-mentioned account was an account of all the sums assessed and 
charged for the relief of the poor, and, on the part of the govemors, refused to give any 
further account ; and no other account was ever rendered to the said James Hales Mit- 
chiner. The judge on the trial certified under the statute, that a right was in question. 
The questions for the opinion of the Court are — First, whether or not the said govemors 
and directors having, as is admitted by the pleadings, fully accounted to the said 
auditors under the said local Act of Parliament, are also bound to account to the 
auditor appointed under the order of the said Poor- Law Commissioners, under the 
46th and 47th sections of stats. 4 & 5 Wm. 4, c. 76. Secondly, if the said govemors 
and directors are bound so to account to the auditors so appointed under 4 & 5 
Wm. 4, c. 76, whether or not the account rendered by the said Charies Boydell on the 
part of the said govemors and directors, as above mentioned, is a sufficient account 
within the meaning of the said sections, so as to entitle the defendants to have the 
verdict entered for them on the second of the above issues. 

This case was argued in last Easter Term, by Tomlinson, for the Crown ; and Erie, 
Q.C., for the defendants. Cur, adv. vult. 

Lord Denman, C.J. now delivered the judgment of the Court. — In this case two 
questions have been raised for our consideration : first, whether the defendants, having 
accounted to the auditors appointed under the local Act, 6 Geo. 4, are bound also to 
account to the auditors appointed under the order of the Poor- Law Commissioners ; and, 
secondly, if they are so bound to account, whether they are to account as to all the 
moneys raised under the local Act, or only as to so much as is in fact applied to the 
relief of the poor. Now, as to the first question, it seems to us that the powers of the 
auditors appointed under the local Act are so inadequate to the due discharge of the 
duties requured of auditors appointed by the orders of the Poor-Law Commissioners, 



TRINITY TERM, 1B44. 71 

they having no power to disallow any items of the account, that we clearly think the 
defendants are bound to account to the latter auditors, though they have already 
accounted to the auditors under the local Act. Indeed this question was hardly con- 
tested and is in effect settled by the case in the 11th vol. of Adolphus and Ellis 
(Reg, y. The Poor-Law Commissioners (Allstonefield Incorporation), 11 Ad. & £• 
558). As to the second question, it was contended on behalf of the defendants, that 
they were not bound to render an account to the auditors appointed by the Poor-Law 
Commissioners of all the moneys received under the rate in question, because some 
portion of those moneys was applicable to other purposes ; but only of such part of 
the produce of the rate as was intended to be applied and was applied to the purposes of 
the relief of the poor. It appeared that the rate in question was a rate made at Is. 2d. 
in the pound, for the relief, maintenance, lodging, and employment of the poor, and 
ms calculated to produce a sum of 6,000/. : but not more than half of that sum 
vas applied or intended fjo be applied to the relief of the poor ; the residue was applied 
and intended to be applied to the purposes of the police-rate, the county-rate, the 
ptjment of principal and interest and annuities, in respect of debts charged upon the 
rates made under the local Act, salaries, and other expenses of carrying the local Act 
into effect. Now, the defendants did account to the auditor appointed by the Poor- 
Lav Commissioners as to that part of the sum received under the said rate which was 
applied and intended to be applied to the relief of the poor ; but they objected to 
anoont as to the residue, which was raised for and applied to other piurposes, and 
ihether they are bound to do so is the question. It is not necessary to refer to the 
pronrions of the local Act, because this question depends entirely upon the construe - 
tioa <rf the Poor- Law Amendment Act ; and the decision in this case will apply 
QBdmbtedly to every parish in England where, under one rate for the relief of the 
poor, moneys are raised for the payment of the county-rates, police-rate, or any 
other purposes than the relief and maintenance of the poor. By the 46 th section 
of the Poor-Law Amendment Act, the commissioners may, by order under their 
hands and seal, " direct the overseers or guardians of any parish or union, or of so 
many parishes or unions as the said commissioners in such order may specify and 
dedare to be united for the purpose only of appointing and paying oflBcers, to appoint 
such paid officers with such qualifications as the said commissioners shall think neces- 
sary for superintending or assisting in the administration of the relief and employment 
of the poor ; and for the examining and auditing, allowing or disallowing of accounts in 
SMch parish or union or united parishes, and otherwise carrying the provisions of this 
Act into elocution, and the said commissioners may define and direct the execution of 
the respective duties of such officers, and the places or limits" within which they shall 
he performed. In pursuance of this power, the commissioners did direct the guardians 
of the Holbom Union, of which the district in question forms a part, to appoint an 
anditor, whose duties were, in part, to be, to audit the accounts of the said union and 
of the several parishes comprised therein ; to inquire and ascertain whether the expen- 
ditore had been such as the parish officers might lawfully and properly incur, and to 
ftiike out all items which were not justified by some provision of law or by the orders 
of the commissioners. Then, by the 47th section, it is provided that " every overseer, 
treasurer, or other person having the collection, receipt, or distribution of tie moneys 
assessed for the relief of the poor in any parish or union, or holding or accountable for 
any balance or sum of money, or any books, deeds, papers, goods or chattels relating 
to the relief of the poor, or the collection or distribution of the poor-rate of any parish 
w union, shall once in every quarter (or oftener, if the commissioners shall so direct) 
ttake and render to the guardians, auditors, or such other persons as, by virtue of any 
statute or custom, or of the orders of the said commissioners, may be appointed to 
examine, audit, allow, or disallow such accounts, a full and distinct account in writing 
of all moneys, matters, and things committed to their charge, or received, held or 
eipended by them on behalf of any such parish or union, and, if thereunto required, 
shall verify the same on oath or subscribe a declaration to the truth thereof; and all 
balances due from any guardian, treasurer, overseer or assistant overseer, or other 
person having the control and distribution of the poor-rate, or accountable for such 
halanoesy may be recovered in the same manner as any penalties and forfeitures are 



n magistsjltes* cases. 

recoverable under this Act." Two things may be observed in tihis sectioa : fint> 
tfiat the accounts are to be rendered to persons appointed either by statute, custom* 
or by the orders of the Poor-Law Commissioners, " to examine and audit, allow or 
disallow such accounts ;" and, secondly, that the account to be rendered is an acoooat 
*' of all moneys, &c. received, held, or expended on behalf of any such parish or unioii ;** 
and the balance is to be recovered as penalties under the Act. Now tiie auditor 
under the local Act does not, as has been already observed, possess the power whidi 
is required in an auditor under this section ; he has no power to disallow any of the 
items in the accounts submitted to him ; but the auditor under the order of the Poor« 
Law Commissioners clearly possesses that power ; he, therefore, is the party to whooi* 
under section 47, the accoimts should be rendered. With respect to the accounbi 
themselves, the clause includes " all moneys received, held, or expended on behalf oC 
the parish or union ;" and, therefore, we think applies to all moneys raised by means of 
the poor-rate ; and in confirmation of this view it is to be observed, that in the descrqK 
tion of the persons who are to account at the commencement of the section referred to. 
'' persons holding or accountable for any balance or sum of money, or any books, deedi[» 
papers, goods or chattels relating Uh the relief of the poor, or ^e collection or distri- 
bution of the poor-rate of any parish or union," are mentioned. It appears to us. 
therefore, that by the terms of the 46th and 47th sections of the Poor-Law Amend- 
ment Act, as applied to this case, the defendants were bound to account to tiie 
auditor appointed by the Poor-Law Commissioners, not merely for so much of tiie 
moneys received by them under the poor-rate as was raised for and applied to the rehflf 
of the poor, but for the whole amount raised under the rate in question ; and that 
the auditor had a right to insist on ascertaining the whole amount of the balance in 
the hands of the accountant. There is here but one rate, and that professedly levied 
for the relief, maintenance, lodging, and emplojrment of the poor : and though the 
examination of expenditure under such a rate may introduce inquiries foreign to the 
immediate and avowed object of the rate, viz. the relief of the poor, that is necessarily 
incident to the inquiry, and was probably contemplated by the legislature when it 
provided a remedy for the recovery of the balance in the hands of the accountant, 
obviously meaning the whole balance of the rate made for the relief, maintenance, and 
employment of the poor. We are of opinion, therefore, that the verdict must stand. 

Judgment for the Crown. 



Q.B. Monday, June 10. 

The Queen v. The Matob op New Windsor. 

The Town Council of a borough ordered a borough rate to be made at 6d, in the pound, and appwnUit 
under 7 Wm, 4^1 Viet. c. 81, t. 3, tpecial overseere to levy and collect within a parish wMek 
was partly within and partly without the borough, a 9um specified as the share qf that parish, ne 
overseers so appointed made a rate qf Id, in the pound on that part qf the parish which was wiihisi 
the borough, a rate at 6d, in the pound not being sufficient to raise the sum specified, though lAf 
rate at Id, was calculated to produce more than that sum. 

Held, that they had no authority so to do ; and that, therefore, the non-payment qf the rate so nude 
did not disguali/y « person otherwise qualified from being placed on the burgess list oj the said 
borough, 

WHATELEY. Q. C, in Michaelmas Term 1843, obtained a rule cwalling on the 
mayor of the borough of New Windsor to shew cause why a writ of numda^ 
iRtM should not issue, commanding him to insert the name of James Thomas Bedbo- 
zough upon the burgess-roll of the said borough. The following facts appeared up<ai 
the affidavits in support of the rule. 

Mr. Bedborough was duly elected a councillor for the said borough on the 1st day 
of November, 1842 ; but his name was omitted from the burgess list made by the over- 
seers of the parish of New Windsor no the 5th day of September, 1843, pursuant to 
the provisions of stat. 5 & 6 Wm. 4, c. 76, s. 15. ^ In consequence of that omission, he 
caused the following notice to be served upon die town-ckrk of the said borough on 






TRINITY TERM, I8Mw 73 

die ISHk diqr of September: — ** I hereby give you notice that I claim to have my name 
inoted in die burgess list of the borough of New Windsor, that I occupy a house in 
Sheet-street in the said borough, and that I have been rated in the parish of New 
Windsor for the same during the last three years and upwards ;" and his name was 
aeoofdingly inserted in the list of claimants. On the 13th of October following. 
BoberfD^ibott, Esq., the mayor, with Thomas Wm. Marlin and Chas. Stuart Voules, 
tte assessors for the revising of ^e burgess lists in the borough of New Windsor, held 
a coort £ar that purpose ; and at that court Mr. Bedborough attended with his attorney 
and proved his qualification, calling, amongst other witnesses, George Turpin, the 
aaistant overseer of the said parish, who stated on oath '* that Mr. Bedborough was 
omitted fix>m the burgess list for no other reason than that he had not paid a certain 
borough rate of sevenpence in the pound, made for that part of the parish of New 
Wxii£or which was within the borough of New Windsor, on the 23rd Janiiary, 1843, 
punuant to an order of the Town Council of the same borough, bearing date the 5th 
JiDoary, 1843." With regard to that rate the following facts were then proved by 
Ifr. Seeker, the town-derk :— i 

The following entry was made in the Minute-boik of the Town Council at a meet- 
ing hdd on the 5th day of January, 1843, when the said borough rate was ordered : 

" Thie Finance Committee presented their report on the assets and liabilities of the 
drancil as estimated for the ensuing six months, signed by the treasurer ; whereupon 
ikims moved — ' That a borough rate, calculated at sixpence in the pound, be forthwith 
nnedy as under :— 

£. s. d. 

New Windsor 519 3 

Clewer ••• ••• ••• ... ••• 119 2 

Lower Ward, Castle ••• 31 11 6 



£669 16 6' 



In pursuance of that resolution of the Town Council, several orders were issued for 
flie making, levying, and collecting of the said rate ; of which the following are 
copies r— 
"BcHo' of New \^^dsor\ At a Court of the Mayor, &c., holden at the Guildhall, 

to wit. J &c., on the 5th day of January, &c, 

(LS.) 

"Whereas, the parish of New Windsor, liable to and supporting its own poor, is 
psrtly within and pnrtiy without the said borough. And whereas the said mayor, aider- 
men, &c. have this day ordered that o^e general rate or assessment, in the nature of a 
ooonty rate, should be made and assessed upon every parish, &c. And whereas the 
Mid mayor, aldermen, &c. did rate and assess upon that part of the said parish of 
New W^dsor which is within the said borough, and within the jurisdiction and 
mhority of the said mayor, &c. the sum of 519/. 3s. as the proportion pajrable 
by such part of the said parish, &c. towards the said general rate or assessment. 
Now the said mayor, aldermen, &c. have, by virtue of a certain other Act passed in 
die 1st year of her present Majesty's reign, intituled, ' An Act to provide for the levying 
of rates in Boroughs and Towns having Municipal Corporations in England and 
Wales,' and in pursuance and in exercise of all other powers and authorities enabling 
tiiem in that behalf, nominated and appointed, and do hereby nominate and appoint, 
Vx. John Tills and Mr. Wm. Towers, substantial householders of the said parish, &c., 
oferseers within such part of the said parish, for making, levying, and collecting such 
borough rate therein. And it is hereby ordered and declared that the said John Illls 
and Wm. Towers, so respectively appointed, shall have the same powers vested in them» 
and shall be subject to the same regulations and penalties for levying and collecting 
sudli borough rate in such part, &c., as fully and effectually, to aR intents and pur- 
poses, aa if they, the said John Tills and Wm. Towers, were appointed overseers of the 
poor under any law or laws now or hereafter to be in force. Given under the common 
seal of the said mayor, aldermen, and burgesses, the day and year first above written. 

" RoBBax TsBBOTT, Mayor." 



7i HAGISTRATES' CASES. 

Two other orders, precisely similar in form, were issued under the common seal, 
bearing date on the same day as the above, and appointing separate special overseers 
for mining, levying, and collecting the rate in the district of the Lower Ward, and in 
that part of Clewer parish which lies within the borough respectively. 

The following precept or order was also issued contemporaneously with the above :— - 
«« Borough of New Windsor ") At a Court of the Mayor, Aldermen, and Burgesses, &c. 
to wit. J holden at the Guildhall in the said Borough on 

(L. S.) Thursday, the 5th day of January. 1843. 

" Whereas the mayor, bailiffs, and burgesses of the said borough in council assem- 
bled, have, by virtue of an Act of Parliament made, &c. [5 & 6 Wm. 4, c. 76] , and in 
pursuance of the authority of another Act, &c. [55 Greo. 3, c. 51], and all otiier Acts 
enabling them in that behalf, ordered that one general rate or assessment, in the nature 
of a county-rate, should be made and assessed upon every parish, part of a parish, and 
extra-parochial place within the said borough, for raising the smn of 6691, 1 6s. 6d. for : 
the ends and purposes mentioned in the said several Acts and other Acts relating | 
thereto ; which said sum, the said mayor, aldermen, and burgesses in council assembled 
thought necessary, and in their discretion sufficient, for the same purposes ; and the 
said mayor, aldermen, and burgesses in council, by virtue of the said several Acts, did 
rate and assess upon every parish, part of a parish, and extra-parochial place within 
the said borough, and within the jurisdiction and authority of the said mayor. Sue,, as 
their quota or proportion towards raising the said sum, the respective sums of mone^ 
appearing in the margin hereof, (a) amounting in the whole to the sum of 669/. 16s. 6d. 

" To the end, therefore, that the said several sums may be forthwith collected and 
paid according to the directions of, and to and for the ends and purposes expressed in, 
the said several recited Acts, you, the high constable of the said borough, are, by 
virtue of the said several Acts, and of the aforesaid order of council, required fortibwitfa, 
on receipt hereof, to demand in writing each sum of money rated and assessed in the 
aforesaid rate upon each of the said several parishes, parts of parishes, and extra-pan>- . 
chial places within the said borough, of the overseers there specially appointed by the 
said mayor, &c., to make, levy, and collect the same, or any or either of them, or leave 
such demand in writing at their, or either of their, dwelling-house or houses ; who axe 
hereby and by the said several Acts of Parliament required, by a special rate or rates to 
be made under the authority of the said several Acts, or of other Act or Acts enabling 
them in that behalf, some or one of them to pay such sum of money so rated and 
assessed thereupon as is above specified, to you, the said high constable, within the 
space of thirty days after demand thereof, so made in writing as aforesaid. [The 
precept then proceeds to order the high constable to pay the same into the hands 
of the treasurer of the borough stock ; and recites the power of the high constable to 
levy the same by distress, &c., if the overseers should fail to pay, concluding] : And 
you, the said high constable, are not to fail of performing the matters and things above 
mentioned, and enjoined, &c., under the penalties, &c. Given under the seal of the 
said mayor, aldermen, and burgesses, at the Guildhall of the said borough, on the day 
And year first above wTitten. 

" Robert Tebbott, 
" Mayor of the said borough. 

"* To the high constable of the borough of New Windsor, 
in the county of Berks, and to the overseers specially 
appointed for the parishes, parts of parishes, and 
extra-parochial places above mentioned, and to all 
others whom these shall or may concern." 
In pursuance of the supposed authority given to them by these orders, the special 
overseers appointed for the parish of New Windsor made a rate in the following form : — 
" A rate or assessment, at 7 d. in the pound, on all the rateable property of that part 

£. 8. d. 

^^^^^ (a) New Wiodsor Parish, inrithin the borough 519 3 

^^^^■t Clewer Parish, within the borough 11920 

^^ ^^ Lower Ward, Windsor Castle, extra-parochial 31 11 6 

W Total .. .. £669 16 6 

r — 



TfilNITY TERM, 1844.. 75 

of the parish of New Windsor, with Dedworth, which lies within the borough of New 
Winds<Mr, made this 23rd day of January, 1843 (pursuant to an order of the Town 
Council of the said borough, bearing date the 5th day of January inst.) by us, 

"John Tills, 
"Wm. Towers. 
*' Overseers appointed by the said order. 

"Rateable value, 21,196/. 10s. ; at 7d. m the pound, 618/. 4s. TJd." 

The special overseers appointed for the parish of Clewer, and those appointed for the 
district of the Lower Ward, also made rates respectively, in the same form ; the former, 
however, being a rate at 9d. in the pound, and calculated to produce 177/. 9s. ; the 
latter a rate at 6d. in the pound, and calculated to produce 31/. lis. 6d. 

Upon these facts Mr. Bedborough, by his attorney, contended at the said Court of 
Berision that the said alleged borough rate was badly and illegally made, and was in 
xtKlf unequal, uncertain, and altogether illegal ; that instead of being an equal pound 
nte, it was unequal, being at 7d. in the pound in New Windsor parish, at 9d. in 
the pound in Clewer parish, instead of being an equal and certain pound rate of 6d. in 
dK pound on all rateable property within the borough. The mayor, however, and his 
* tneseors, were of opinion that they could not go into the validity of the said borough 
nte, but felt compelled to refuse the insertion of Mr. Bedborough's name in the 
Burgess List, in consequence of his non-payment of the said borough-rate. 

Ihe affidavits in answer stated, that in order to raise the gross amounts ordered by 
^ Town Council, from time to time, to be paid by the districts of New Windsor, 
Clever, and the Lower Ward of the Castle respectively, it has always been found 
neccaary to charge the inhabitants of those districts at a poundage exceeding that 
Vftm which the order for the general borough rate had been originally estimated by 
; tie Town Council, that calculation being made upon the gross annual rateable value 
flf aH the property in the district, without regard to unoccupied houses, cases of ex- 
txane poverty, or expenses of and incident to the making and collection of the rate ; 
that with regard to the present rate, the districts of New Windsor and Clewer could 
not have raised their respective quotas or proportions by making a rate of 6d. in the 
poond only ; that with regard to the former, a rate of 7d. in the pound, and with 
regard to the latter, a rate of 9d. in the pound was necessary for that purpose ; that it 
was only in consequence of a small cash balance from a former borough rate remaining 
•t the time in the hands of the special overseer for the district of the Lower Ward, that 
a rate of 6d. in the pound was sufficient to produce the quota of that district; and 
tiiat all former rates made and collected in the same manner as the present had been 
paid by Mr. Bedborough without objection. 

jy/e#, Seijt. and Peacock, now shewed cause. — ^The non-payment of this rate dis- 
qualifies Mr. Bedborough from being placed on the Burgess List. In the first place, the 
nte is good ; the alleged inequality of it arises from the circumstance of the borough 
containing three separate districts, each maintaining its own poor ; but the rate is 
equal within each of those districts, and each district pays only its proper share of the 
whole sum to be raised. Owing to local circumstances, a different poundage is neces- 
ary in each of the different districts, but that does not make the rate bad ; and even 
i the rate were unequal, the proper course would be to appeal against it to the 
Recorder of the borough. Rexv. Westmoreland (10 B. & C. 226) decides both those 
points. It certainly is not a void rate, and cannot be so treated. Another objection 
», that this is not at all events a borough rate " directed to be paid under the provi- 
aon of this Act" (5 & 6 Will. 4, c. 76), section 9 of which enacts that "no person 
thall be enrolled in any year unless he shall have been rated in respect of such pre- 
mises so occupied by him within the said borough to all rates made for the relief of 
the poor of the parish wherein such premises are situate, during the time of his occu- 
pation as aforesaid ; and unless he shall have paid on or before the last day of August, 
«s aforesaid, all such rates, including therein all borough rates, if any, directed to be 
paid under the provisions of this Act, as shall have become payable by him in respect 
I of the said premises ;" and by sect. 92, the council is, under certain circumstances, 
tuthorized and required, from time to time, to order a borough rate, in the nature of a 
county rate, to be made within their borough, and for that purpose are invested with 



all the powers of justices in Quarter Sessions, under 55 Geo. 3, c. 51, as to the wiftlring 
of county rates. 

Is not this, then, a borough rate, under sect* 9 ? It will be argued that it is not ; 
because these being districts requiring separate overseers, the powers of the sub* 
sequent Acts are necessary with regard to tiie collection of it ; but suppose it is neces- 
sary to refer to the subsequent Acts which relate to that subject, they are all in pari 
materid, and must be construed together. (Anon. hoSt, 398 ; Rex t. Palmer^ 2 
East's P. G. 898 ; Re Lords of the Treasury, 1 Mylne & Craig, 676 ; and other audio- 
rities collected in Harrison's Digest, 6267, edit. 1844.) Mr. Bedborough, therefore, is 
disqualified by the non-payment of this rate, and the rule must be discharged. 

Whateley, Q. C. con^. — Here there are two points for consideration : first, is the 
rate good ? secondly, if it be good, is the non-payment of it a disqualification under die 
Municipal Corporations Act ? In the first place, the rate is bad. [Pattesoit, J.-* 
Can it be necessary to shew more than a de facto rate ? It would be very inconvenient 
to try the validity of a rate upon an application like the present.] This is a rate in 
the nature of a county rate, under the 55 Geo, 3, c. 51 ; no single individual, there- 
fore, can appeal against it ; and this is the only mode in which the question can be 
raised, as it affects the rights of Mr. Bedborough alone. The rate which Mr. Bed- 
borough refused to pay was clearly not the rate directed by the Town CouncO to be 
made. The Town Council having ordered a borough rate at 6d. in the pound, ap- 
pointed special overseers, under 7 Wm. 4 & 1 Vict. c. 81, s. 3, to collect die sum of 
519/. 3s. from the parish of New "^^^dsor, as its share of that rate ; but instead of m 
doing, the overseers raised 618/. 4s. 7|d. by a rate of 7d. in the pound. 

Lord Dbnman, C. J. — Under 7 Wm. 4 & 1 \^ct. c. 81, s. 3, the council sb^ 
pointed overseers for the purpose of levying and collecting a certain borough mlei 
the persons so appointed wo^d have the like powers and be subject to the liks 
reg^ations as other overseers ; and you say that those overseers, under that aectioa; 
had authority to collect the rate pointed out by the Town Council, and no otfacn 
\Whateley, — That is the short point.] We are with you upon that point ; we tiiiak 
tibat the overseers wanted authority to do that which they have charged as a rate. 

Rule ahsohUe («). 

{a) The following are the material dauies referred the said last day of Angiut shall hare rece l iwd PVO* 

to m the argument : — chial relief or other alms, or any pension or iSbmmtBM 

Stat. 5 & 6 Wm. 4, c. 76, s. 9.—*' And be it allowaoee from any fund intmsted to the cfaariMli 

enacted, that every male person of fall age who on tmstees of snchborongh hereinafter menttonad.'* 

the last day of August in any year shall have occn- Sec. 92 (after provimne for the establishment aai 

pied any house, warehouse, counting-house, or shop application of a borough fund), proceeds : — ** And tt 

within any borough during that year and the whole case the borough fund shall not be suflSdeat far tt^ 

of each of the two preced^ years, and also during purposes aforesaid, the council of the borough Ishen^ 

the time of such occupation shall have been an inha- by authorized and required from time to time to estt- 

hitant householder within the said borough, or with* mate as correctly as may be what amount, ini 

in seven miles of the said borough, shall, if dulv en- tion to such fund, will be sufSdent for the payi 

rolled in that year according to the provinons here- of the expenses to be incurred in carrying into i 

inafter contained, be a burgess of such borough and the provisions of this Act, and in order to raise ths 

member of the body corporate of the mayor, alder- amount so estimated, the said council is hereby Of 

men, and burgesses of sudi borough : provided thoriaed and required from timp to time to oraer a 

always, that no such person shall be so enrolled in borough rate in the nature of a county rate to be 

any year unless he shall have been rated in respect made witUn their borough, and for that purpose tks 



of such premises so occupied by him within the bo- council of such borough shall have within tncir bo* 
rough to all rates made for the relief of the poor of rough all the powers which any justices of the [ 



the parish wherein such premises are situated daring assembled at their General or Quarter Sessions ia 

the time of his occupation as aforesaid, and unless any county in England have within the limits of 

he shall have paid on or before the last day of Au- their commission by virtue of an Act made in tit 

gust, as aforesaid, all such rates, including therein 55th year of his late Majesty King George tks 

all boroueh rates, if any, directed to be paid under Third, intituled ' An Act to amend an Act of Uf 

the provisions of this Act, as shall have become late Majesty King George the Second for the men 

payableby him in respect of the said premises, ez- easy assessing, collecting, and levying of Ooolf 

oept such as have become payable within six calen- Rates,* or as near thereto as the nature of the cum 

dar months next before the said last day of August : will admit, except as is hereinafter exoepted ; SM 

provided also, that the premises in respect of the all wsnrrants required by the ssid Act to be issaed 

oecupation of which any person shall have been so under the hands and srals of two or more ju sti esi 

rated need not be the same premises or in the same shall in like case be signed by the mayors aad 

parish, but may be different premises in the same sealed with the seal of the borough ; provided that 

parish or in different parishes : provided also, that no such council shall not be empowered to reeeive, hear. 

person being an alien shall be so enrolled in any or determine any «ppoal against any such rate ; ■■ 
yeor« and that no person shall be so enroUed in any 
jear who within twelve calendar months next before 



if any person shall think himself aggrieved by vq 
such rate, it shall be lawlU Idr Um to i pped ta 



•Tsmmr tebm, ism. 79 



Thi Qunw o. The Justices of Lancashire, in the matter of the Trustees of 
the Rochdale and Manchester Turnpike Roads. 

2^ a loecl Act fir the more ^eettuilly repairing a certain tumpike'roadjrom Rochdale to Manchee" 
ier, it waaproMed that ** no money ehould be laid out on any road comprieed in the Act within 
the Umite qfany Act of Parliament paeeedfir the impromement of any Town,** Long before the 
p a ming ef thai Act, another Act had been passed **for lighting, cleansing , watching , and regulating 
the liwn qf Mochdale,** by which Act Commissioners were appointed for ** lighting, 6fc. and im» 
prooing" the said town, and many specific " improvements** qfthe town were eo nomine directed 
to be w$ade. Held, that the latter was an '* in^nwemenf* Act within the meaning of the former 
Aet : mlthomgk the improoements specified were confined to particular parts of the town, and 
to be paid fir by those parts of the town only ; and although no power to repair the roads being 
gmn to the Commissioners, the effect would be to take the repair qf the roads within the limits qf 
the tmiier Aet out qfthe jurisdiction of the trustees under the former Act, and to leave them to the 
reme^ mi Common Law ; and the Court of Quarter Sessions were right in refusing under such 
e iremmst anees to apportion a fine which had been imposed upon the inhabitants qf a township for 
Off fMN-rf|urfr qf a road comprised within both of the btfore-mentioned statutes, between the 
said imkoMtanis and the tumpike-road trustees, under the 11 DM sec, qf the General Turnpike 
Ad. 

The S ee eione having refused to apportion on the ground above stated i held, that mandamus would lie 
to emnpel them, 

COWLING, in Easter Term, obtained a rule calling on the justices of Lancashire 
to shew cause why a writ of mandamus should not issue commanding them to 
CUK continuances to be entered on a certain conviction of the inhabitants of the 
Inlet of Marland for the non-repair of a road, and to make an order under stat. 
I Geo. 4, c. 126, s. 110 (the General Turnpike Act) apportioning a fine of 800/., 
had been imposed upon the inliabitants of the said hamlet, together with costs, 
1 the said inhabitants and the trustees of the Manchester and Rochdale tum- 

feIoad. At the General Quarter Sessions of the Peace held by adjournment at 
fd, in and for the county of Lancaster, on the 8th day of January, 1844, a bill 
of indictment was preferred and found a true bill against the inhabitants of the hamlet 
of Marland, in the said county, for not repairing a part* of the Rochdale and Man- 
chester tompike-road, being a common Queen's highway, situate in the said hamlet, 
higinning at the commencement of the said highway, at the easterly end of the new 
vdlon the parade, in the township of Gastleton, and extending from thence to a 

neordcrbapdDBfter mentioned at the next Qoar- luch borongh rate or watch rate therein; and in 

for the boronsh in which tnch rate has every snch case of a divided parish or place, if the 

; or In case there shall be no recorder borongh is not liable to the connty rate, the justices 

borongh, to thejnstiees at the next Court of the peace hariog jurisdiction over that part of 

stQmatee Sessions for the county within which such such psirish or place which is not within the borough 

) it U 



I is situate or whereunto it is adjacent ; and shall appoint odc or more proper person or persons 

MS reeorder or justices respectivdy shall have to act as overseer or overseers within that part of 

finer to bear and determine the same and to award such parish or place which is not within the borough, 

olef In the premises, as in the case of an appeal for making, levying, and collecting the county rate 

' ■sTCOunty rate," &c. therein ; and the person or persons so respectively 

7 Wm. 4 Se 1 Yiet. c. 81, s. 2. — " And be to be appointed shall have the like powers vested In 

tiuit it shall be lawfol for the council of him or them, and shall be subject to the same regu- 

ny MKJb borongh, at any time within six calendar lations and penalties for levying and collecting any 



next alter the passing of this Act, to make such borough rate, watch rate, or county rate with- 

sed leiy a borough rate for the purpose of defraying in that part of such parish or place for which he or 

MfapeBaoslaeuTed before the passing of this Act, they is or are appointed, as if he or they was or 

h fitting In exeention the provisions of the said were appointed overseer or overseers of the poor 



Aet for icfolaiing eorporations ; and every such rate under any law or laws now or hereafter to be in 

Ml be ■ode, levied, and recovered in the manner force.'* 

invUed by the said Act for regulating corporations The stat. 55 Geo. 3, c. 51, s. 14, provides, ** That 

md by this Act." if the churchwardens or overseers of the poor, or 

8ert.S. — " Plrovided ahraysand be it enacted, that other inhabitant or inhabitants of any parish, town- 

inefcryenee Inwhieh any parish or place liable to ship, or place, whether parochial or otherwise, 

«Mtt Its own poor shall be parUy within and where there is no churchwarden or overseer, or per- 

ffvny vlthont anv such borongh, and in the case of son appointed to act as such, shall at any time have 

etery atra-ptfoculal plaee wholly or partly within reason to think that such pariah, township, or plaee 

ny eodl borongh, the conndl of the borough shall Is aggrieved by any rate, &c., it shall be lawfol for 

proper person or persons to act such ehnrd&wai'dens or overseers, or other inhabit 

leen within that part of sudi tants, where there is no churchwarden or overseer, 

plaee which is within the bo- to appeal," Sec. 
and eolleetlng any 




78 MAGISTRATES* CASES. 

point in the same highway, opposite to a dwelling-house called Sparth, then in the 
occupation of Benjamin Barlow, and containing in length 1,800 yards. At the same 
sessions John Erving and Robert Cogswell, inhabitants of the said hamlet of Marlaad» 
appeared and pleaded guilty to the t^'o first counts of the said indictment, and 
demurred to the remaining two counts, as to which a nolle prosequi was then entered. 
The Court of Quarter Sessions then proceeded to hear evidence as to the sum of 
money that would be needed to put the road so indicted into repair, but no fine for 
not repairing such road was then set upon the said inhabitants ; for after the evi-i 
dence had been given, the counsel for the inhabitants stated that they claimed to have 
such fine, when set, apportioned between them and the trustees of the Rochdale and 
Manchester turnpike-road; and the Court thereupon heard the arguments of the 
counsel for the inhabitants and of the counsel for Thomas Fleming, Esq., the trea- 
surer of the said Rochdale and Manchester turnpike-road touching the construction of 
a clause in stat. 7 Vict, concerning the said road, whereby it is enacted, that " no 
money shall be laid out on any road comprised in this Act within the limits of any 
Act of Parliament passed for the improvement of any town, nor shall any be collected 
therein, or in any of the towns following," that is to say, ** the town of Rochdale and 
the town of Manchester." It being admitted that the road for the non-repair of 
which the inhabitants were indicted was within the limits defined by section 101 of 
Stat. 6 Geo. 4, hereafter more particularly mentioned, the Chairman, after hearing 
the arguments, declared it as the opinion of the said Court of Quarter Sessions, that 
the said last- mentioned Act of Parliament was an improvement Act, and therefon 
refused to apportion. The counsel for the inhabitants then applied to the said Court 
of Quarter Sessions to grant a case for the opinion of this Honourable Court thereon; 
but there being a difficulty in adopting that course, judgment was respited until the 
next sessions, which were held on the 26th February following, llie said Court ga?e 
judgment on the two first counts of the indictment, setting a fine of 800/. upon the 
inhabitants of the said hamlet for not repairing the said road, which fine the said 
justices then and there directed to be paid to Clements Royds, Esq., a justice of the 
peace for the said county, to be applied in repairing the said road under the direction 
of him the said Clement Rpyds and William Chadwick, Esq., another justice of the 
peace for the said county. The inhabitants then again applied by counsel to the justices 
to apportion the said fine, together with the costs and charges attending the same, 
between the inhabitants of the said hamlet and the trustees of the said Rochdale, 
and Manchester turnpike-road, and to make an order upon the said Thomas Fleming, 
as the treasurer of the said turnpike-road, to pay the sum which should be apportioned 
for such turnpike-road pursuant to the statute, and they refused to make any appor- 
tionment of the said fine, on the ground that the funds of the said turnpike-road were 
not applicable to the repair of the road comprised in the said indictment ; but no 
inquiry was then made or any evidence heard respecting the debts and revenues of the 
said Rochdale and Manchester turnpike- road, or the state of the funds thereof. The 
Rochdale and Manchester turnpike- road, from its commencement at the easterly end 
of the new wall, in the town of Rochdale, to the end of the Vicarage-avenue, near the 
guide-post in Rochdale, being a length of 822 yards, or thereabouts, runs between 
buildings which are part of the town of Rochdale; it then leaves the continuous 
buildings of the town, and from the end of the Vicarage-avenue to the police boundary 
of the borough of Rochdale, at a point in the said road, near to a dwelling-houae 
called Sparth, being a length of 999 yards, or thereabouts, the road is bounded in 
part by fields, and in part by dwellings and other buildings, which dwellings and 
buildings are outside of and separate from the continuous buildings of the town. By 
the 101st section of stat. 6 Geo. 4, it is enacted that the provisions thereof shall 
. extend to the whole space between three-quarters of a mile, to be computed in a 
straight line in each and every direction from the old market-place in Rochdale and 
no further ; and the space so defined is made up of part of the township of Castleton, 
part of the township of Wardleworth, part of the township of Spatland, and part of 
the township of Waudle and Warale ; each of the said townships maintsdns its own 
poor, and has separate overseers of the poor and constables. The township of 
Castleton is divided into several hamlets, each maintaining its own highways, of which 



TRINITY TERM, ISM. 79 

bamlets Marland is one, and only a small part of the hamlet of Marland is within the 
CmitB defined by the said 101st section. No property save that specified in the 
76th section and in the schedule to the said Act had been taken or used for the 
purpose of making any improvement or of widening any road in Rochdale by the com- 
ndssioners, nor had any road been widened or any other improvement made by the said 
commissioners, excepting those particularly mentioned in the said Act; and the 
I aid commissioners had never meddled with the repair of any road or way in Roch- 
I dale; but the road within the space defined by the 101st section had, until within 
dgbteen months or two years before the indictment in question was preferred, 
been usually repaired by the trustees of the turnpike-road. . 

W. H. Watson, Q.C. and Cardwell, on Thursday, the 6th of June, shewed cause 
against the rule. — ^This application for an apportionment is made under 3 Geo. 4, c. 126, 
8.110; that section provides " that when the inhabitants of any parish, township, or 
jJace shall be indicted or presented for not repairing any highway, being a tumpike- 
nnd, and the Court before whom such indictment or presentment shall be preferred 
doll impose a fine for the repair of such road, such fine shall be apportioned, together 
vith the costs and charges attending the same, between the inhabitants of such parish, 
township, or place, and the trustees or commissioners of such turpike-road, in such 
inanner as to the said Court, upon consideration of the circumstances of the case, shall 
fcem just ; and it shall and may be lawful for such Court to order the treasurer of such 
turnpike-road to pay the sum so proportioned for such turnpike-road out of the money 
then in his hands, or next to be received by him, in case it shall appear to such Court, 
fiRxn the circumstances of such turnpike debts and revenues, that the same may be 
paid without endangering the securities of the creditors, who have advanced their 
BODey upon the credit of the tolls to be raised thereupon, which order shall be bind- 
ii^ upon such treasurer, and he is hereby authorized and required to obey the same ;" 
ai^ Uie first objection is that in this case mandamus will not lie. There has been no 
xrfbsal on the part of the justices to entertain the question ; they heard it argued on 
both sides and came to a decision upon it, and the statute expressly provides that the 
apportionment shall be made " in such manner as to the said Court shall seem just." 
The justices are the proper judges of the question, and this Court will not grant a 
nffji^smtf^, because they have decided in a particular way. [CoLsaiDOE, J. — Tlie Act 
says, the fine •' shall be apportioned ;" the justices, therefore, are bound to do so, un- 
less they shew some very sufficient cause. Supposing the case had been free from the 
diflSculty arising upon the Rochdale Lighting Act, and still the justices had refused to 
apportion, should we not have interfered then ?] The justices are to apportion in such 
maaner as they think just ; that vests in them an absolute discretion of throwing the 
whole payment on the parish ; and the rule is, that this Court will not interfere with the 
exercise of their discretion. [Lord Denman, C. J. — If the justices had made a wholly 
disproportionate apportionment, we should not have interfered ; but it seems here they 
have declined to exercise the power.] They heard the whole question fully argued. 
[Coleridge, J. — They thought the circumstances had not arisen, which would give 
them jurisdiction to apportion. Patteson, J. — The real point is, that this is no part of 
the turnpike-road.] That is exactly what the Court of Quarter Sessions has decided. 
[Patteson, J. — I think that is hardly declining jurisdiction ; the 110th sect, of the Ge- 
neral Turnpike Act is imperative ; the justices must apportion, if the road is part of a 
tQmpike-road. The words are, " Any highway being a turnpike-road ;" and the question 
here is, is it a part of the turnpike-road ?] The case was viewed precisely in that hght 
at the sessions, and was decided upon that very point. The second objection depends 
upon the construction of the 3 1st clause of stat. 6 & 7 Vict. c. xci, (a) and stat. 6 
Geo. 4, c. cxxviii. {h) By the 31st sect, of the former Act it is provided, " That no 
money shall be lend out on any road comprised in this Act within the limits of any Act 
of Parliament, passed for the improvement of any town, nor shall any be collected 

(a) An Act for more effectually repniriDg the Road and for making a Diversion in the line of such 

from the new Wall oo the Parade in Castlcton, in the Road. 

I'^cish of Rochdale, through Middleton to the Mere ijb) An Act for lighting, cleansing, vratcbing, and 

Stooe in Great Heaton, and to the Tovrn of Man- regulating the Town of Rochdale in the County Pa- 

dieiter, all in the County Palatine of Lancaster ; latine of Lancaster. 



m liAOISTRATE»- CiSBk 

therein, or in any of the towns foUowing» (that is to say,) the town of Rochdale and 
the town of Manchester ;" it is admitted that the road in question is within the limits 
defined by the 101st section of the latter Act ; and the question is, whether that lattar 
Act is, within the meaning of 6 & 7 Vict. c. 91, s. 31, an Act for the improvement of 
a town. It is confidently submitted that it is so ; it is an Act " for lighting, deanfliiig^ 
watching, and regulating the Town of Rochdale ;" and lifting and watching. &c.» 
are in thiemselves clearly improvements in a town. But it is not left to inference ; die 
very first clause appoints commissioners *' for lighting, cleansing, watching, regnli^ing^ 
and improving the town of Rochdale ;" and otiber clauses specify particiidar improve^ 
ments. The conmiissioners have power to declare new streets pubUc highways, wfaidi 
are then to be repairable by the hamlet (s. 48) ; to erect posts, &c. for guarding the 
footways (s. 52) ; to remove all signboards, spouts, pent-houses, porches, rails, &c'» 
whether already existing, or thereafter to be erected, which in their judgment shall be 
considered public annoyances or nuisances, by reason of projecting into, encroaching 
on, or otherwise annoying or endangering tiie public passage (ss. 56, 57, 58) ; U> 
widen a certain footpath called the Walk in Wardleworth, the expense to be paid out 
of " the rate for improvements hereinafter mentioned ;" and " the said imprwemeiU " to 
be completed within twelve months (s. 76) ; to erect a foot-bridge over tiie river at the 
end of the Walk (s. 77) ; and to buy buildings, &c., situate in Spotland and Waxdto- 
worth, for the removal of obstructions occasioned thereby, and for " imprmrimg*' tfas 
streets or lanes in which the same are situate (s, 78); all these are improvements of a 
town. [PATrxsoN, J. — Is there any clause for keeping the streets in repair ?] There is 
no genial clause to that efiect ; but as to certain new streets, it is provided that they 
are to be repaired by the townships and hamlets in which they are situate. [Pasw 
TBSON, J. — But how are the other streets to be kept in repair ? You say the turnpike* 
road trustees have no authority to do it, wherever this Act for the lighting and watcfap 
ing, &c. of Rochdale extends.] The common law liability of the hamlets and towDsh^ 
remains the same as before ; and may be enforced whenever the streets are out of 
repair. Further, the 94th sect, provides that the sites of buildings purchased by the 
commissioners, as aforesaid, are to be laid to and become part of the highwa}^, for the 
purpose of widening or otherwise " imprcving** the same ; sect. 98 authorizes rates 
for lighting, cleansing, and watching ; and s^. 99, rates which are called in the 
margin " improvement rates ;" and out of which the clause itself provides that the 
expense of " the improvements" is to be defrayed. The stat. 6 Geo. 4, c. 128, ia» 
therefore, beyond all doubt, an improvement Act ; it passed in 1825, and must have 
been in the contemplation of the legislature when the Slst clause was introduced into 
6 & 7 Vict. c. 91, which did not receive the Royal assent until Aug. 1843. It 
may be hard upon the township to have to pay all ; but the trustees of the Rochdale 
and Manchester roads have no authority to collect or expend money upon these streets 
of Rochdale. The inhabitants cannot complain ; they are parties to their own im- 
provement Act, which for this purpose is in the nature of a private deed, and are 
subject to the rates imder it, as well as to their conmion law liability to repair the 
highways ; it matters not that 6 Geo. 4 contains no provision for the repair of t£e 
roads generally ; for if it did, that could scarcely be called an improvement which is 
in foct a duty imposed by the common law. LsuBtly, the words d the 31st sect, of 
6 & 7 Vict. c. 91, exclude the town of Rochdale by name from the jurisdiction of the 
trustees ; and as to the limits of the town, it must be understood in connection with the 
previous words of the clause, and be taken to be that town of Rochdale, for which 
there is an improvement Act ; that, it is admitted, includes the road in question. 

Cowling and WMgham, contrii, were stopped by the Court as to the first point.— As 
to the second, the 6 Geo. 4, c. 128, is not an improvement Act; or at all events the 
matter is so doubtful, that it ought to be raised on the record. The road in question 
is part of the regular highway between Rochdale and Manchester, and was first 
placed under turnpike trustees by stat. 44 Geo. 3, c. 49. (a) That statute was re- 

(a) An Act for more dfectuaUy smendinf the Ttownthlp of Great Heaton, and to tlie TofWB of 
Road leading from the New Wall on the Parade in If anehester, all in the Coontj Palatine of Ls^ 
the Township of Castleton, In the Parish of Roch- caster. 



> TownsMp 
e, throQgh 



Middlcton to the Mere Stone in the 



^ Geo« 4, c. 107(a) ; the main object of whidi was to divide the road into 
s, the one called the Manchester, and the other the Rochdale district ; and 
ih under separate trustees. By that Act power is given to the trustees to 
ates on any part of the said road (s. 17) ; and the IUx:hdale trustees are re- 
rply all moneys collected by them under that Act to the repair of the road in 
ledbtrict generally (s. 27). Then came 6 Geo. 4, c. 128, which is properly 
ice Act, and not an Improvement Act. In the first place, it is at all events no 
It Act, so fiar as the roads generally are concerned ; hitherto the road in 
\s always been repaired by the turnpike trustees ; but if the argument on the* 
a correct, the consequence is this, that the anthority to repair is taken away 
rustees, and not given to the commissioners, but that the repair of the road 
e course of the common law. Section 48 does no more thui the 2drd sec. 
leral Highway Act (5 & 6 Wm. 4, c. 50), which provides that no person 
ate a road without the consent of a justice of the peace ; but it gives no 
ipair ; after the dedication, the justice has no more power over it ; and so 
m as the commissioners have declared certain streets to be public highways, 
' is at an end. By sec. 51, the commissioners may place bars across the 
kt they are undergoing repair ; so may the lord mayor of London, but he 
wer to repair. Further, by this Act the pa;vements are not vested in the 
lers ; on the contrary, it is expressly provided that, after the new streets 
declared public highways, the pavements shall not be disturbed without the 
the surveyor of the highways for the hamlet (s. 58). Secondly, all the 
lents" specified in the Act are confined to the two townships of Spodand 
eworth, and the ''improvement" rates are to be levied on those townships 
i word " improvement" is not found in the title of the bill, as is usual ; and 
) power given to the commissioners to improve the town generally, or par- 
improve that part in which the road in question is situat^, and which lies 
town of Rochdale, popularly speaking, though within the jurisdiction of the 
lers under the Police Act. It is true the 1st section appoints commissioners 
ving the town ;" but that is controlled by the subsequent provisions, 
eo. 4, c. 128, then being, in its general character, rather a police than an 
Qt Act, the next question is, what is the meaning and object of 6 & 7 
? That is an Act passed expressly for the purpose of giving further and 
ual powers for repairing and improving the road from RochdEde to Man- 
:ludmg that part of it which is the subject of this indictment ;(b) yet the 
n contended for on the other side would destroy the powers before possessed, 
nly the common law remedy in case of non-repair. That is clearly incon- 
1 the general scope and object of the Act ; it is also inconsistent with its par- 
risions. The 7th sec. provides " that this Act shall be put into execution 
pose of more effectually improving, maintaining, and keeping in repair the 
mpike-road leading from the new wall on the parade in the township of 
in the parish of Rochdale, to the centre of the market-house in the town of 
&c. ;" and the 12th sec. enables the trustees to " demand and take at the 
. respective toll-gates or toll-bars which shall, by virtue of this Act, be upon 
Lde of the said road between the new wall, &c. and the market-house in the 
Iddleton, such tolls as the said trustees, at any of their meetings, shall direct, 
Ing, &c." The 29th sec. relates to the application of the money collected 

; for amending the Road from the New interest thereon, so fiur as reeards the mortgage debt 

1 for diverting certain parts of the said apportioned to the Rochdale district, and such 

money cannot be paid oiT, or the interest thereof 

ktltkd ** An Act for more effeetoally diseharged ; nor ean IA« $aid roads be ^ectuaily im" 

Road from the New Wall, &c. and for practd «md kept in rtpair, unku further potoers are 

version in the Une of snch Road,*' granted, ^e. And whereas it is expedient that the 

mble, after redthie stat. 4 Geo. 4, c. said recited Aet should be repealed, and thatjwriher 

division of the road into two districts and mare effectual pomert ekoidd be granted/or re- 

kCt, and that that division had been paring andimpremng the eaid road$, and that the 

«icnt, proceeds thus ; — ** And whereas said roads should be managed bv one body of trus- 

rams of money advanced upon the ere- tees ; but the porpoaes aforeaatd eannot be eflSected 

s anthorized to be taken upon the said withoat tlw antiiomy of PsiUansnt : may it there- 

sain owing, together with an arrear of fiDrOy &c.*' 



g8 MAGISTRATES* CASES. 

under the Act, and after specifying two other heads' of expenditure, directs it to 1 
applied, " Thirdly — In paying tiie expenses of improving, maintaining, and keeping 
repair such roads." What roads ? None are mentioned but those described in tl 
7th sec. It is clear, therefore, that, so far, the locus in quo is not taken out of tl 
jurisdiction of the trustees. But then comes sec. 31, and it is submitted that the on 
object of that clause is to take away the jurisdiction of the trustees wherever any io 
provement commissioners, properly so called, are appointed : but here there are nom 
It could never have been intended to leave any part of the road to the common la 
remedy. Rochdale is certainly mentioned eo nomine, but that is only in connectio 
with the latter part of the section which relates to the collection of tolls ; it does nc 
afifect the jurisdiction of the trustees, but is pointed to the inconvenience of havin 
toll-bars in large towns. The Rochdale Police Act was passed sixteen or seventee 
years before 6 & 7 Vict. c. 91 ; and if the earlier part of this 31st clause had bee 
intended to apply to Rochdale, Rochdale would have been expressly named there as i 
the latter part ; but it is said that the earlier part does, in fact, include Rochdale ; i 
so, why is it mentioned by name afterwards ? It is no answer to say that the limits o 
the Police Act and the town are not the same, because the Police Act includes thi 
town. Looking at the whole of the clause, the legislature must be taken to have sup- 
posed that Rochdale had no " improvement " Act, according to their understanding oj 
that word. The case of Chorlton-upon-Medlock v. Walker (10 Mee. Sc W. 742), is in 
favour of this construction. There the question turned upon an Act for " improving and 
regulating the township of Chorlton-upon-Medlock ;" and the Court held that, by the 
words " owner of buildings, ground, or land," the legislature must have meant, refer- 
ence being had to the general objects of the Act, to charge those persons who were 
owners for the piuTpose of deriving ordinary temporal profit from the subject of tiie 
property ; and this stat. of 6 & 7 ^^ct., when it speaks of the " improvement d 
any town," must mean the improvement of the roads, because that is the expresi 
object of it. [Coleridge, J.— It does appoint commissioners "for improving tk 
town " generally, although particular improvements are pointed out.] That meani 
•* for improving the town " as thereinafter mentioned. [Wightman, J. — An improve- 
ment in any part of a town is surely a benefit to the whole.] The Act does not pro- 
ceed on that supposition; for the " improvement rates " are to be levied only on thoM 
particular townships to which the improvements are confined. At all events, thii 
question is one of so much doubt, that it ought to be put on the Record, and an oppor* 
tunity aflForded of taking it into a Court of Error. Cur, adv. vuU. 

Lord Denman, C. J., now delivered the judgment of the Court.— In this case, cause 
was shewn against a mandamus to direct the justices to act under the 1 lOth sect, of thi 
General Turnpike Act, 3 Greo. 4, c. 126, by apportioning a fine imposed on a township 
for not repairing a public road, between the inhabitants of the township and the trus- 
tees of the Manchester and Rochdale turnpike-road. 

This is a power which the Court of Quarter Sessions would certainly be bound to 
exercise if the enactment in the General Turnpike Act first referred to were the onl} 
one relating to the subject ; but in the last session of Parliament, an Act was passed ka 
the more eSectually repairing the turnpike-road in question, which, as it appears to us 
expressly limits that power ; for it provides that "no money shall be laid out on any nm 
comprised in this Act," including this road among others, " within the limits of any Ac 
of Parliament passed for the improvement of any town ; nor shall be collected therein 
or in any of the towns following (that is to say, the town of Rochdale and the tow 
of Manchester)." Now the indicted road lies within the limits of the Act 6 Geo. 4, c 
128, appointing commissioners for regulating the government of the town of Rochdal 
in many respects ; and these commissioners are in the Act styled " commissioners fc 
improving the town," for which piu^ose funds are raised, and large powers conferre 
upon them. 

But in the argument various considerations were pressed upon us which might we 
excite surprise that such an enactment should have taken place in the present instanci 
and very serious doubts whether it ought to be construed as the Sessions have decide< 
We are, however, of opinion, that the words of the Act left them no choice, and that the 



TRINITY TERMt 18i4. 8a 

iperly refused to exercise their jurisdiction. From the languag^e which I have 
d from the Act itself, the description is assuredly a full and correct description 
;t for the improvement of that town, and it would be too much, upon the occur- 
various and contradictory provisions in dififerent parts of an Act, to call upon 
rtof Justice to speculate how far the le^slature may possibly have contemplated 
onsequences that would follow firom construing the words used in their natural 
iVe think the rule must be discharged, and with costs as regards the justices. 

Rule discharged accordingly. 



Q.B. Tuesday^ June 11. 

EEN V. William Moobb, Clerk, and Leonabd BaowN, Esq., Justices, &c., 
in the Matter of the Harbour Master of Wisbeach. 

a local Act provision i» made that certain eume of money may be recovered by applying /Q 
r /or diatreu warrants^ which, after proqf of the turns being due, the said Justices are 
xed to issue, they are bound to hear and adjudicate upon any such application, and this 
nil compel them to do so by mandamus; though the parties applying for the warrant may 
yother remedy by action at law for the recovery of such sums of money, 

E, Q.C. had obtained a rule, calling on the Rev. Wm. Moore, D.D., and 
jeonard Brown, Esq., justices of the peace for the ports of Holland, in the county 
tin, to shew cause why a writ of mandamus should not issue commanding them 
a warrant for levying the sum of 679/. 4s. 9d., being the costs and expenses of 

weighing, and removing a certain ship sunk in the port and harbour of Wis- 
t>y distress and sale of the goods and chattels of Messrs. Francis Hulton and 
elf, of King's Lynn, the owners of the said ship, 
ollowing facts appeared upon the affidavits for and against the rule : — 
e month of February, 1843, Thomas Gamer, of Sutton St. Mary, in the 

Holland and county of Lincoln, was the harbour-master of the port of Wis- 
ippointed under the provisions of statute 50 Geo. 3, c. 206, " An Act for 
ing a Cattle-market within the Town of Wisbeach, in the Isle of Ely ; for taking 
I removing the Shambles therein ; for paving, cleansing, lighting, and watching the 
nd removing Nuisances therein ; for preserving and improving the Port and 
' of Wisbeach, and for regulating the Pilots belonging thereto.*' {a) On the 18th 

; following are the material clauses of that shall judge to be most couTenient for navigation, 

drainage, and trade, and within such time or times 

). ''Be it further enacted, that it shall as he or they shall think reasonable, and to order 

for the said capital bnrgesses and their the situation of any such ship, barfe, lighter, or 

i, from time to time, to appoint one or more other vessel, within the said port or harbour, from 

laster or harbour-masters, for regulating time to time, to be altered or varied as the said 

g and mooring of vessels within the said harbour- master or harbour-masters shall judgo 

harbour of Wisbeach, and for preventing necessary ; and also, from time to time, to order 

ring annoyances and obstructions therein, and direct the owner or owners, or person or per- 

urrying into effect and enforcing the several sons having the command or rule of any ship, barge, 

ers, and bye-laws, which shall be, from lighter, or other vessel, which shall at any time bo 

time, made to the said capital bur- stranded, wrecked, sunk, or bilged within the said 

r their successors, respecting the said port port or harbour, to cause the same to be weighed, 

vox, and, from time to time, to remove raised, got up, and removed to such place or places 

harbour-master, and to appoint another as the said harbour- master or harbour- masters 

X ; and that it shall be lawful for the said shall see convenient, within such time or times as 

oaster or harbour-masters, when and as he or they shall think reasonable for the purpose \ 

he or they shall see occasion, to appoint and also, from time to time, to order and require 

oy proper servants and assistants under the owner or owners of, or person or persons claim- 

un ; and that it shall be lawful for such ing to be entitled to any timber, &c. ; and that in 

oaster or harbour-masters, from time to case any such person or persons, or owner or 

order and require the person or persons owners as aforesaid, shall at any time refuse or 

le command or rule of any ship, barge, neglect to moor, &c., weigli, raise, get up, or 

r other vessel, entering into, or lying, or remove any such ship, barge, lighter, or other vessel 

tthin any of the limits of the said port or as aforesaid, &c., to such place or places, within 

to moor, anchor, and secure the same in such time or times, and in such manner as any such 

( or places within the said port or harbour harbour- master shall order or direct for that purpose, 

id harbour-master or harbour-masters itshallbelawfulforanyauch harbour-master and for 



U MA6ISTBATES* CASES. 

of that month, a certain ship, called the Isabella^ of the port of Lynn, of whi 
Messrs. Francis Hulton and laond Self, of King's Lynn, in the county of Noifo 
merchants, were then the owners, sunk in a certain part of the Wisbeadi river, wit] 
the port and harbour of Wisbeach, viz. a certain new cut, or channel, whkh v 
authorized to be made and was made under the provisions of the statute 8 Geo. 4, c. I 
entitled "An Act for improving the Outfall of the River Nene and the Draina^ 
the Lands discharging their Waters into the Wisbeach River, and the Navigation of 
said Wisbeach River, S^c" Thereupon the said harbour-master, by writing under 
hand, pursuant to the first-mentioned Act, ordered the owners, Messrs. Hulton and Si 
to cause the vessel to be raised, weighed, got up, and removed to a certain place, which 
considered convenient (naming it), within seven days from the service of die said notii 
but they did not comply with that order, and accordingly, on the 13th March, he gj 
them notice of his intention to proceed to weigh, raise, get up, and remove the shqi 
the risk and cost of the said owners. The harbour*master then employed his o 
servants and assistants in weighing, raising, and removing the vessel; and, on the 11 
June following, gave notice to Messrs. Hulton and S^ that the costs and chaq 
of so doing amounted to 6797. 4s. 9d., of which sum he demanded payment. Up 
their refusal to pay, the harbour-master, on the 25th July, applied to two justices fo 
distress warrant to levy the same by sale of the goods and chattels of the said owne 
but the hearing of tluit application was from time to time adjourned until the 1( 
October ; when Messrs. Hulton and Self, both personally and by attorney, appeal 
before the Rev. Wm. Moore, D.D., and Leonard Brown, Esq., two justices, and Qpr 
of the above facts having been first given on the part of the said harbour-mast 
objected : — 1. That the justices had no jurisdiction over cases where a greater va 
than 20/. was brought into question. 2. That imder the statute 8 Geo. 4, c. t 
they had no jurisdiction over the new cut or channel, or over any questions arising 
respect of vessels sunk therein. 3. That whilst the vessel was sunk, and before tl 
had received any notice to raise it, they had abandoned it to the underwriters ; a 
that they, therefore, were, at all events, not the parties liable to pay the expenses 
weighing and raising the vessel. The first of these objections was overruled by 1 
justices ; but they considered the 2nd and 3rd valid objections ; and, consequent 
refused further to entertain the application. The affidavits, in opposition to the ru 
also contained statements as to the inexpediency of raising the vessel at all, and as 
the improper manner in which it had been done, and the unnecessary expense which b 
been thereby incurred. 

Butt now shewed cause. — ^This application is made under stat. 50 Geo. 3, c. 20 
8S. 60 & 81 ; the former of which gives the harbour-master of Wisbeach power to rai 
and remove vessels sunk in the port of Wisbeach, in case of the refusal of the owne 
to do so ; and provides that the costs of such raising and removing shall be borae 1 
the owners, and may be levied and recovered as any penalties under the Act a 
directed to be recovered ; the latter, as to all penalties and sums payable under the A< 

bis assistants and senrants to moor, &c., weigh, made, or within the times hereinbefore respediv 

ndse, get up, or remove, or eause to be moored* limited for the payment thereof, then, and in i 

&e., weighed, raised, sot up, or removed, snch sachca8e,where the recovery of such penaltiesi i 

ship, &c. ; and that snch person or persons, owner is not by this Act otherwise prorided for, it il 

or owners, shall bear the risk of mooring, &c., be lawfni for any justice or jvstiecs of the M 

weighing, raising, getting np, or removing such for the isle, coonty, or division wherein saea i 

ship, &c. ; and that the costs and charges of moor- spective penalties, &c. shall have respectively bi 

ingy &C., weighing, raising, &c. snch ship, &c., incurred, &c., upon application to be made to I 

by any such harbour-master as aforesaid, shall be or them for that purpose, and upon ^proof of i 

borne and paid by the person or persons having the such penaltv, &c. havine been incurred or beeo 

rule or command, or the owner or owners of such payable, bmg given baorehand to the satiiAifll 

ship, &c., and shall and may be levied and re- of the said jnstMe or justices, either by the cod 

covered in such and the same manner as anv penalty sion, &e., or by the oath of one or more oredi 

is by this Act directed or authorized to oe levied witness or witnesses, &c., to cause such uaf 

and recovered, &c." penalty, &e. to be levied by distress and sale of 

Sect. 81 provides, ** That in case the several goods and chattels of the person or persons ^ 

penalties, forfeitures, and fines by this Act inflicted shall have incurred or become liable to pay the ss 

or authorized to be imposed on any of them, and &c., by warrant or vrarrants under the hand 

the several sums of money by this Act made payable seal or hands and seals of such justice or justic 

or authorized to be demanded and received, or any which warrant or warrants such justice or just: 

of them, shall not be paid to the person or persons is and are e np ow er e d to grant for those purpose 
entitled to receive the same, upon demand thoeof 



TRINITY TERM, 1844. 85 

makes it lawful for magistrates to issue a distress warrant. Under these circumstances 
the Court will not grant a mandamus, for there is another remedy ; in the first place, 
these costs may be recovered from the owners by action of debt, or on the case. Cor- 
rigall v. London and Blackwall Railway Company (6 Scott, N.R. 241), in which it was 
lidd an action would lie. This is not an application for a mandamus directing the 
justices to hear and adjudicate. [Patteson, J. — Yes, it is.] Have the magistrates 
any power to decide as to the reasonableness of the amount ? [Lord Denman, C. J. — 
TTwit is the very thing they have to inquire into.] The reasonableness of amount is a 
q[oestion most proper for a jury, and tlie Court will, therefore, be incHned to give weight 
to the argument that an action may be brought. Secondly, the harbour-master may 
recover these expenses by a suit for salvage in the Admiralty Court, under 26 Geo. 2, 
c. 19. Lastly, by issuing this warrant, the magistrates will expose themselves to an 
«tioii ; and where there is a legal probability of that result, the Court will not inter- 
fere to compel them by mandamus. Rex v. Greame, 2 Ad. & £11. 615. 
Erk, Q. C, contrk, was not called upon. 

Lord Denman, C. J. — We think that the justices ought to hear and adjudicate 
tq»n this matter ; the Act of Parliament requires them to do so ; but we give no 
opinion as to the course they must take. 

Rule absolute. {a) 



Q.B. Tuesday^ June 11. 

The Queen r. The Company op Paoprietors of the Great Western 

Railway. 

'^foor^rateM were made by parish officers on the 22nd November ^ 1842, and 24M February, 1843, 

f^peetivefy ; but they tcanted the declaration of those parish officers required by stat. 6^7 

ITm. 4, c. 96, s, 2. In the month of Marchjhe omission being discovered, the original aUowancex 

wre erased by the parish officers, the requisite declaration was inserted^ and the rates were re- 

tUowed by two justices on the 26th March and 1st April respectively. 

^rsiheay company occupied land in the parish and refused to pay the above rates f but did not appeal 

tftutst either of them. Another occupier, however, did appeal to the June Quarter Sessions, and 

ike two rates were then quashed by consent ; the Court at the same time ordering two new rales to 

** made in lieu qf them. In these orders the rates were described as rates made in November and 

f^ruary respectively. On the 14M and 22nd July, two new rates were made, in obedience to the 

'hve-mentioned orders of Sessions ; and against those rates the railway company appealed to the 

(ktober Sessions, who held that they were bound by their June orders, and confrmed the rates 

Accordingly : all the above orders having been removed by certiorari, 

^di, 1st. That the company were not precluded by the circumstance qf their not having appealed 

«fainMi the original rates, 2ndly. That the orders of the June Sessions must be quashed, because they 

Speared on the face of them to have been made at a Sessions not the next after the making of the 

f^es, and ther^ore without jurisdiction ; and that those of the October Sessions must be quashed 

9ito, because they were obviously dependent upon the two former orders. Zrdly. That the erasure 

^ the original edlowance and the addition qf the declaration required by statute, together with a 

^resk allowance upon the old rates, would not give them the effect of fresh rates, dating from the 

re-aliowance, 

^MBffre, whether since the passing of stat, 3^4 Vict. c. 89, the objection that the profits of trade 

mm rated tweets the jurisdiction. 

MD. HILL, Q.C., in last Easter Term, obtained a rule, calling on the justices 
• in and for the county of Buckingham to shew cause why certain orders of 
Uie Court of Quarter Sessions for the said county, which had been removed into this 
^^oort by certiorari, should not be quashed. 

Tlic following are the material facts, as they appeared upon the affidavits for and 
tgainst the rule, and upon the face of the documents returned into this Court. 
On the 22nd of November, 1842, a rate for the relief of the poor of the parish of 

(«) Otherobiectioiis to the issuing of the vrarrant and they were therefore reserved for future argu- 
*cre nenthmed, bat it was admitted that they were ment. — B. 
■ore pn^er to be taken on the return to the writ. 



86 MAGISTRATES* CASES. 

BumliazD, in the county of Buckingham, was made, on a new valuation of the pari^ 
by the proper parish officers, was allowed by two of the justices of the pea 
of the said county, on the 26th day of the same month, and was published 
the following Sunday after such allowance. Thereupon the parish officers proceed 
to collect the said rate, and nearly all the inhabitants and occupiers of property in t 
parish of Bumham paid the same before the making of the rate next mentioned. T 
Great Western Railway Company, at the time of the making, allowing, and publishii 
of the said rate were and have ever since continued to be occupiers of land in the sii 
parish of Bumham, and were assessed as such by and under the said rate; and, in t 
latter end of December following, the Company caused the churchwardens and ovc 
seers of the parish of Bumham to be served with a notice from the secretary of t 
company of the intention of said company to enter and respite an appeal at the th 
next Quarter Sessions of the Peace, to be holden at Aylesbury, on the Srd day 
January then next, against the said rate, for the several causes and grounds of appc 
specified in a paper- writing thereto annexed ; but no proceedings were taken by t 
said company in respect of such intended appeal further than the service of the befoi 
mentioned notice. 

On the 31st of December, 1842, a letter was written to one of the secretari 
of the company by the assistant overseer of the parish of Bumham, to the effie 
that the parish authorities were about to abandon the then existing assessment on t 
said company (which was considerably higher than it had been before), and to assc 
them as theretofore on the old valuation. 

On tlie 24th day of Febmary, 1843, another rate for the relief of the poor of t 
said parish of Bumham, also upon the new valuation, was made by the prop 
officers of the said parish, was allowed by two justices on the 25th day of the sai 
month, and was published on the next following Sunday after such allowance. Tl 
second rate the parish officers also proceeded at once to collect, and nearly all t 
rated inhabitants and occupiers of property in the same parish paid the same in tli 
and the next month of March, and before the holding of the Quarter Sessions of t 
Peace for the said county, in the mouth of April, 1843. Under this second rate al 
the Great Westem Railway Company were assessed as occupiers of land in the sa 
parish. No appeal against either of the said rates of November or February w 
entered either at the January or April Sessions, although more than thirty da 
elapsed between the publication of the first rate of November and the January Sessioi 
and more than forty days between the publication of the second rate of Febmary aj 
the day on which the April Sessions were held. 

In the month of March, 1843, the churchwardens and overseers of the said parish 
Bumham discovered that the said two rates were invalid in point of form, there not beii 
a declaration at the foot of each of them, signed by the said churchwardens and ovc 
seers, according to the form prescribed by the statute 6 & 7 Wm. 4, c. 96, s. 2 ; th 
thereupon caused the several before-mentioned allowances of the said two rates to 
respectively erased ; and the majority of the said churchwardens and overseers havii 
signed a declaration at the foot of each of the rates according to the form prescribed 1 
the statute, the said two rates were re-allowed and re-published : that is, the rs 
made on the 22nd day of November, 1842, was re-allowed by the same two justices « 
the 25th day of March, 1843, and was re-published on Sunday, the 26th day of ti 
same month ; and the said rate made the 24th of Febmary, 1843, was re-allowed 1 
the same justices on the 1st day of April, 1843, and was re-published on Sunday, tl 
2nd day of April, 1843. 

The following is the form in which these two rates appeared after the alteratioi 
above detailed : — 



TRINITY TERM, 18i4w 



S7 



« 00 

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n s 



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§2 



The notice of publication, dated 26th March, 1843, stated that a rate of 6d. in 
^ponnd was made for three months, in November, 1842, and allowed 25th March,. 

"«3. 5^7^^^^'-} Churchwardens. 

Jas, Newson, Overseeer. 

With regard to the second rate of February, the same form, mutatis mutandis, was 
in all respects adopted. 

Application was made at different times to the secretary of the company for 
payment of the several sums of money at which the company, were in these twi> 
rates respectively assessed, but the company always refused to' pay the same. Notices 
of appeal to the June Quarter Sessions, against the twof several, rates of November and 
February, were served upon the parish officers by or in the name of one WiUiam Brit- 
iiell, a rated occupier in, and the parish clerk of the said parish ; and those notices 

s2 



88 MAGISTBATES' CASES. 

were dated on the 11th of May, 1843, but appeared by the endorsement thereon to have 
been served on the 2nd of June following. These appeals were for the first time en- 
tered, and also heard and determined at the Quarter Sessions for the county of Bucks, 
holden on the 27th of June, 1843, when, by consent of both parties, the two following 
orders were made by the Court. 

** Bucks, "I At the General Quarter Sessions of the Peace of our Sovereign Lady the 
to wit. J Queen, holden at Aylesbury, in and for the said coimty, on Tuesday in the 
first week after the 24th day of June, to wit, the 27th day of June, in the 7th year of the 
reign, &c., and A.D. 1843, before Sir Thos. Digby Aubrey, Bart., Geo. Grenville Pigott» 
Esq., the Right Hon. Robt. John Lord Carrington, and others, their fellows, keepers 
of the peace, and justices, &c. Upon hearing the appeal of William BritneU, an in- 
habitant and occupier of lands and tenements in the parish of Bumham, in this 
county, against a certain rate or assessment made for and towards the necessary relief of 
the poor of the said parish, bearing date the 22nd day of November now last past, it is 
ordered by the Court, this present Sessions, by and with the consent of counsel on both 
sides, that the said rate or assessment be, and the same is, hereby quashed, vacated, 
and discharged ; and it is further ordered and directed by the Court, this present Ses- 
sions, that the churchwardens and overseers of the poor of the said parish of Bumham, 
do and shall forthwith, upon notice of this our order, make a new equal rate or assess- 
ment for or to^*ards the necessary relief of the poor of the said parish of Bumham, in 
lieu of the said rate which is hereby quashed, vacated, and discharged. 

•' By the Court.— Tixdal." 

The other order made at the same Sessions, for quashing the rate, bearing date the 
24th February, and directing the parish officers to make a new equal rate in lieu 
of that rate, was drawn up in precisely the same form. To these two appeals the 
company were not in any respect parties, and in the affidavits in support of the 
rule various facts were stated for the purpose of shewing that those appeals originated 
in collusion between Mr. BritneU and the parish officers ; amongst others, that the 
parish solicitors acted in the conduct of these appeals as solicitors for the appellant, as 
well as for the parish ; and that either before the notices of these appeals were served, 
or before the hearing, Mr. BritneU had paid the amount due from him under the two 
rates then in question ; but there was a denial of this latter fact in the affidavits on the 
other side. Between the making of the two rates of November and February, and the 
entering of Mr. Britnell's appeals, there had been a change in the parish officers of 
Burnham. Subsequently, on the 14th and 22nd of July, in pursuance and under the 
authority of the June orders of Sessions, two new rates were regularly made, al- 
lowed, and published, in lieu of the two rates of November and Febmary,' the headings 
of which were in the form following : — 

" An assessment for the relief of the poor of the parish of Burnham, in the county 

of Buckingham, and for other purposes chargeable thereon, according to law, made 

this 14th day of July, in the year of our Lord 1843, after the rate of 6d. in the pound, 

in pursuance of an order of the Court of Quarter Sessions, dated the 27th day of June 

last, in that behalf, being in lieu of a rate dated the 22nd day of November last, which 

was quashed by the said Court, upon appeal. 

" Thos. G. Howard, T ^ 

« n o T « r Overseers. 

"Chas. Rd. Lee, J 

" Wm. Baylky, Jun., Churchwarden." 
Against these two new rates the railway company caused two several appeals to be 
entered at the General Quarter Sessions of the Peace holden in and for the said 
county on the 1 7th October following, being the next Quarter Sessions after the 
making of the two 'several rates of July, on the ground, amongst others, that those 
rates included the profits of the company's trade. Those appeals were heard at the 
same Sessions, and the Court held that they were bound by the orders of Sessions of 
the 27th .June, and that the rates of July being made in pursuance thereof, their le- 
gality could not be gone into by the said Sessions, so as to affect the validity of the 
said orders, until such orders had been set aside by the Court of Queen's Bench, and 
accordingly made two orders confirming the July rates ; which (omitting the merely 
formal part), were as follows : — 



TRINITY TERM, 18U. 89 

" Upon hearing the appeal of the Grreat Western Railway Company, occupiers of cer- 
tain lands and tenements in the parish of Bumham, in this county, against a certain 
Tate or assessment made for or towards the necessary relief of the poor of the said pa- 
lidi of Bninham, bearing date the twenty-second day of July, now last past, it is or- 
dered by the Court, this present Sessions, that the said rate or assessment be, and the 
aune is hereby ratified, confirmed, and allowed. 

" And it is further <miered and adjudged by this Court, that the Great Western Rail- 
wiy Company do and shall forthwith, upon notice of this our order, to be given to 
tboB, or one of them, pay, or cause to be paid, to the churchwardens and overseers of 
the poor of the said parish of Bumham, or some or one of them, or to Messrs. 
Charsley and Farton, gentlemen, their attorneys, the sum of 5/., for and towards the costs 
tod charges and expenses which the said parish of Bumham have been put to in de- 
fading this appeal as just and reasonable in this behalf. By the Court. — ^Tindal." 

Tlie other order which applied to the rate, bearing date on the 14th of July, was 
drawn up in the same terms, except that it did not contain the last clause as to 



On the part of the company, application was then made to the Court to grant cases 
Sar the opinion of the Court of Queen's Bench, but that application was reused. In 
consequence of that refusal, all the before-mentioned orders of Sessions were removed 
into this Court by eertwrari : and, as already stated, a rule nisi had been obtained to 
quash those orders. 

The company's pdnts for argument, as annexed to the paper books, were as 
foDows: — 

Ist. All the orders of Sessions are bad, the Courts of Quarter Sessions not having 
joindiction to make these orders ; as appears from the orders, the extracts from the 
rates, the rates, and the affidavits in support of and against the rule. 

2nd. All the orders of Sessions are bad, for not shewing jurisdiction on the orders 
tiiemsdves. 

3rd. The two orders of Sesrions, made on the 27th day of June, 1843, are void 
under the circumstances mentioned in the affidavits ; and 'the appeals not having been 
to the next Sessions after publication of the two rates of November and February pre- 
ceding, and there being nothing which the Sessions could legally quash, the two July 
ntes, founded upon the said orders, and the two orders of Sessions of the 1 7th Octo- 
ber, confirming those July rates, are also void. 

4th. That the two a{^ieals and orders of June were made and obtained, not bond 
fit, but by fr«ud and collusion of the parties thereto, and were not by or for a party 
aggrieved, and that such orders and rates, and all other proceedings founded thereon, 
ue invalid, and should be quashed. 

5th. Hiat the two rates of July were bad, being unauthorized by law, and made for 
ictrocpective and other purposes not allowed by law, and the orders of Sessions con- 
insing them are also bad. 

6th. The two rates of July being bad, as they include the profits of trade, the two 
Olden of Sessions of October confiming the rates are also bad. 

In last Trinity Term (May 29th), 

KeUy, Q.C.and ArcJAold shewed cause against the rule. — ^Before entering upon 
tire points stated for argument, there is here a preliminary objection, that the Great 
Western Railway Company are not entitled to be heard at all in support of this rule. 
Iliey were no parties to the appeals against the rates of November and February ; they 
■ight baive appealed against those rates, but not having done so, they are not in a 
■tnation to object to £e rates substituted in July. This is an objection to the writ ; 
the writ of certiorari is in the nature of a writ of error in all cases where a Court of 
Beoord takes proceedings contrary to law, and what right has a stranger to the record 
bdow to faring error ? [Colbbidox, J. — ^They did not quarrel with the first rates ; 
hot yon say &ey can't impeach the subsequent proceedings, not having been parties 
to litt appesl against those rates of November and February ; if they did not want to 
be appeUants, could they have been respondents in that appeal ?] 'Diere is no reason 
^Hiy they should ; the parish officers are certainly the proper respondents ; and if 
tib^ n^ect their duty in that respect, they are liable to punishment. The railway 



90 MAGISTRATES* CASES. 

company could have no reason to complain of the quashing of the rates of November ai 
February. [Williams, J.— Of course, as they were rated, the quashing must be a b 
nefit to them.] Certainly, the company could have no interest to set aside the fii 
orders of Sessions, excepting that part of them which ordered the substitution of n€ 
rates ; and as to that, they have a remedy by appeal ; for it is not the order which pr 
judices them, as that may never be obeyed, but the rate made in pursuance of tl 
order. Against the substituted rates tiie company did appeal, and the appeal w: 
heard and decided against them on the merits. On this ground alsp they have i 
such interest as entitles them to the remedy by certiorari. [Pattbson, J. — I don 
know what difference there is between the rate made under the order of Sessions ai 
the rate originally made by the parish officers.] There is no difference, except as r 
gards the question whether the rate is retrospective or not ; and these are questioi 
which would be properly raised on appeal. [Pattbson, J. — ^I doubt that.] Suj 
posing the objection taken on appeal that the new rates were retrospective, that woui 
be met by saying that they were made in pursuance of the order of Sessions ; and the 
the appellants would answer that that order was void. [Pattbson, J.— What cham 
would the appellants have at the Sessions in such a case ? The Sessions would < 
course feel bound by their former order.] That is not to be presumed ; any Com 
may be called upon to review its own previous decisions in subsequent cases ; and it i 
essential to the power of a Court that it should be able to decide any questions upo 
which the cases brought before it may depend. [Coleridob, J. — As to the first order 
of Sessions, the statute is imperative in one respect ; if the Sessions quash the rates 
they must order new rates to be made.] If they had jurisdiction at all — ^but that ii 
the question. The writ of certiorari is not granted ex dehito justitits, the granting oi 
it is entirely in the discretion of the Court ; and if the Court see reason to suppose that 
the Great Western Railway Company are practising a trick upon this parish, they 
will not grant them any remedy by certiorari, (Rex v. Bass, 5 T. R. 251.) At all 
events, this writ ought to be quashed, as the return includes a great variety of matten 
besides the four orders of Sessions. (Reg. v. Abergele, 8 Ad. & Ell. 394.) Then as 
to the question of jurisdiction, it is contended on the part of the Company, that the 
June appeals were out of time. That depends upon the question whether the time for 
appealing is to be calculated from the original making and allowance of the rates of 
November and February, or from the final making and aUowance : if the former, it is 
admitted the appeals were not entered at the next practicable Quarter Sessions ; if the 
latter, they were ; and the latter is the proper mode of calculating the time. That 
which was called a rate in the first instance, and was allowed by magistrates, turned 
out to be no rate ; it was altogether void, because it did not contain the declaration re- 
quired by statute 6 & 7 Wm. 4, c. 96, s. 2 ; and the parish officers treated it as waste 
paper. They struck out the aUowance, wrote and subscribed the declaration required 
by the statute, and then it being a perfect rate, except as to the allowance, they wenl 
before two magistrates, who allowed it. Was not that a rate against which an appeal 
might be entered ? Reg. v. Fordham (11 Ad. & £11. 73) in efiect decides that. Cai 
it be said that the rate was perfect before, and might have been appealed against i 
Surely, if parish officers discover a rate to be a nullity, they are not bound to wait foi 
an appeal against it ; but on the same paper they may make a perfect rate. Suppose 
for instance, something omitted, the absence of which would make the rate entirel] 
unintelligible and inoperative, as the amount of the assessment, might not that omis 
sion be supplied by the parish officers ? Common sense points out that the time fo 
appealing must begin to run from the time when the rate becomes a perfect rate 
These rates were not perfect until the 25th March and the 2nd April, and the appeal 
against them were therefore in time. But suppose they were not, another questio: 
arises. Is the jurisdiction of the Sessions entirely removed as to all appeals not en 
tered within the time specified by the Act of Parliament ; or is that limitation of time 
mere matter of practice, introduced for the benefit of tlie respondents, which may b 
waived by the parties for whose benefit it was provided ? llie statute 17 Qto. 2, < 
^8, does not at all affect the jurisdiction of the justices, but it gives the respondent 
time to prepare their defence. Section 4 provides, " that in case any person or person 
shall find him, her, or themselves, aggrieved by any rate or assessment made for th 



TRINITY TERM, 1844. 91 

relief of the poor, or shall have any material objections to any person or persons being 
put on or left oat of such rate or assessment, or to the sum charged on any persons 
therein," it shall be lawful for such person or persons, " giving reasonable notice to 
the churchwardens or overseers of the poor of the parish, township, or place, to ap- 
peal to the next General or Quarter Sessions of the Peace for the county, riding, &c., 
vfaere such parish, township, or place lies." The question is, is the next practicable 
Quarter Sessions the only Sessions that have jurisdiction to entertain the appeal ? and 
that question may be answered by a reference to what is the frequent practice of this 
Cdort. Whenever a Court of Quarter Sessions improperly refuses to hear an appeal^ 
this Court will grant a mandamus to compel them. During the argument on that 
wmdamus it frequently happens that two or three Quarter Sessions elapse, and it is 
only the third, or fourth, or fifth Quarter Sessions which ultimately hears the appeal. 
Ihen if no Court of Quarter Sessions has jurisdiction except the next after the making 
of the order or rate appealed against, this Court orders the Sessions to do that which 
is beyond their jurisdiction. [Coleridge, J. — ^In all such cases the Sessions are di- 
rected to enter continuances until the day of hearing. Loan Denman, C. J. — If at 
the proper time the Sessions neglect their duty, and then this Court orders them to do 
it, they can't in tliat case be permitted to defeat the Court and the law by then turn- 
ing roimd and saying " now the time is past."] Certainly they cannot do %o, because 
it is a matter of practice and not of jurisdiction. It is like the notice of appeal ; the 
practice of the Quarter Sessions is not to require proof of the notice, unless the objec- 
tioo be taken, but they would if it affected their jurisdiction. [Pattbson, J. — By 
statute 41 Greo. 3, c. 23, s. 5, by consent, appeals may be tried without notice.] 
There was a notice in this case, but it is clear that the want of notice does not affect the 
jurisdiction, because a defect of jurisdiction ccinnot be cured. [Coleridge, J. — Ap- 
peals are entirely of statuteable creation ; they were given by the statute of Elizabeth 
(43£liz. c. 2), and continued by statute 17 Geo. 2; and upon that latter statute it 
has been held that the appeal must be to the next practicable Sessions ; then is not this 
a jurisdiction limited by the very statutes which create it ?] That depends upon 
^icther they are to be liberally or narrowly construed. The Statute of Limitations 
BIC8 this language — " no action shall be brought" — and yet that defence must be 
specially pleaded. The jurisdiction of the Court is not touched by that statute. 
[CoLXRiDOB, J. — No ; but this Court has proprio marte power to try causes.] There 
is a provision in this statute (17 Geo. 2, c. 38, s. 4), that, " if it shall appear to the 
nid justices that reasonable notice was not given, then they shall adjourn to the next 
Qoarter Sessions, and then and there finally hear and determine the same.'' Then, if 
this clause is to be construed literally, no other but the first or second Sessions can 
W; for expressio unius est exclusio alterius ; but this Court often orders the fourth 
or fifth Sessions to hear. [Coleridge, J. — Do you hold, then, that if ten years after 
tbe matter complained of an appeal is entered and heard, and the Sessions refuse a 
ciae, this Court can't interfere ?] If the respondents objected, that would be like a 
piea of the Statute of Limitations ; still, if the Sessions refused a case, this Court 
eould hardly interfere after its recent decisions, (a) However, the fair and reasonable 
ooDstnicdon of the Act is, that this is a regulation intended for the benefit of the 
ic^Kmdents ; not imperative, not compulsory, but one which may be waived by the 
party for whose benefit it was intended. That being the case, the June Quarter Ses- 
ftoos had authority to hear the appeals in question. The next point is, that these 
cnkrs of Sessions are bad, because, as is alleged, the appeals against the first amended 
ii^es were the result of arrangement and collusion between the party appellant and 
tiie perish ; some of the facts from which that inference is raised are disputed ; but 
whether there were collusion or not is immaterial ; Mr. Britnell had an unques- 
tioiiable right to appeal ; and no man can be prevented from exercising a dear legal 
xi^t because he colludes with another person as to the exercise of it. Another 
point is, that the rates of July are bad, as being retrospective ; but all rates made 
in Heu of others under the statute must be so ; and the last objection is, that 
thoie rates included profits of trade ; but that was a question on the merits of 
the appeal, which had been decided by the Sessions. [Lord Denman, C. J. — ^We 
(a) See Reg. ▼. Kesteven (3 d, B. 810, and antCf p. 8). 



92 MAGISTRATES' CASES. 

have nothing to do with that.] This rule, then, upon aU the points ought to be 
discharged. 

M, D. Hill, Q.C. and Corrie, contrk. — ^The preliminary objection taken on tbc 
other side cannot be sustained. This Court has mero motu power to issue a writ ol 
certiorari, as the great superintending authority over these inferior jurisdictions ; an^ 
the Court has already exercised its discretion and issued the writ. Besides, the writ 
can only be quashed upon a substantive motion for that purpose. (Reg. ▼. Fordkam, 
11 Ad. & £11. 73.) Reg. v. Abergele (8 Ad. & £11. 394) has no bearing on the preaoil 
case. [CoLERiDOB, J. — ^The objection in that case was that the return to the writ 
was improper.] This Court will not look at any improper matter in aid of ^thei 
party ; or they might quash the return, if improper ; but that is in aid of the writ ; it ii 
saying that the writ has not been obeyed. In Rex ▼. Bass (5 T. R. 251), Ashurst, J 
said &at if the affidavits suggested want of jurisdiction, the Court was bound to grant 
the writ. The question, whether the Ghreat Western Railway Company has sufficient 
interest to entitle them to this remedy, is in effect already decided by the issuing of the 
writ ; but it is at aU events quite clear that they have sufficient interest. It is fl 
fiedlacy to suppose that because they were not parties to the appeals at the June 
Sessions, they have therefore no interest to quash the orders of the Michaelmas Ses- 
sions ; the* two propositions have no relation to each other; and to say, that if there 
was a remedy by appeal, therefore, they have no sufficient interest, is equaUy unfounded. 
Suppose the Sessions could have given a perfect remedy, would that aid die Court ii 
deciding whether the company had sufficient interest to entitle them to the otha 
remedy by certiorari ? In Rex v. Standard Hill (4 M. & S. 378), where an applica- 
tion for a certiorari to quash orders for the appointment of overseers was objected tc 
on the ground that the proper course was to appeal, the Court said, " We will not 
send the parties to the Sessions;" and Le Blanc, J. used this language : " Where w« 
see that the order which is removed into this Court has been made without any founda- 
tion to support it, I think we ought to quash it without giving the parties an opportunit] 
of going to the Sessions; I cannot find any thing in the affidavits that justifies th< 
caUing this either a township, hamlet, or vill, for the place appears to be part of th< 
old castle of Nottingham. Hie Court then, I think, is bound to interfere, in the firs 
instance, and save the parties from the chances of what might happen at the Sessions/ 
The question is, whether the order of Sessions has not put us in a worse position ', 
Now it is admitted that the rates of November and February were not only made anc 
allowed, but actually collected from all but two parishioners; and if under those cir- 
cumstances they cannot be treated by the parish officers as entire nullities — as if m 
such transaction had ever taken place, — then the orders of Sessions of the 27th JuiM 
were required for the purpose of enabling the parish to obtain from the railway com- 
pany payment of those rates. One of those rates appears on the face of it to be datec 
in November, and to be re-made in March by a different set of officers ; so that thu 
proposition must be contended for on the other side, that one set of officers may mak< 
a rate, get it allowed, and collected from all but two parishioners ; and then anotiier sei 
of officers, succeeding them, may turn round and say, that former rate was waste paper 
and the transaction altogether null and void. In respect to rates, it is most essentia 
that the jus tertii should be regarded ; and the question immediately suggests itself 
whether the new parish officers could call on the parishioners who had paid the formei 
rate to pay over again ? [Colbridge, J. — ^The statute provides that payments mad< 
under the old rate shall be taken as payments under the new rate.] Exactly ; anc 
that shews that the old rate is not an entire nullity ; not mere waste paper. Then tlM 
parish officers have mutilated the parish records, and this Court will interfere on that 
high ground, that spoliation has been committed, which, if done by two, would form thi 
ground of an indictment for conspiracy. This is a recipe for making a retrospectivi 
rate : the parish officers attempt to make in July a rate with all the legal incidents off 
rate made in November preceding ; but this Court must take it that there was a rati 
made in November. There are many cases in which a record, bad on the face of it 
cannot, when brought before this Court, be invalidated on that account. For instance 
in an action on a judgment in an inferior Court, this Court cannot sit in error upot 
that judgment ; the inferior Court may be clearly wrong, but the question cannot be 



TRINITY TERM, 1844. 93 

tried in that way. [Pattebon, J. — In the case of Rex v. Atkins (4 T. R. 12) a rate 
was appealed against, but not in proper time, and the Quarter Sessions confirmed the 
»te. Both the order of Sessions and the rate were removed by certiorari, and the rate 
appeared defective on the face of it ; but this Court said they had nothing to do wdth 
that.] The facts of the case come to this : there was a rate made in November — a 
defective rate, but not an entire nullity ; in March that rate is mutilated by the 
parish officers, who then get it re-allowed ; but discovering that then it could, at all 
erents, only take effect from March, a pretended appeal is got up, and the June Ses- 
sbns are induced to quash that rate and to order the substitution of another, which 
sboold take effect from November. That appeal would not be in time, if it can be 
considered that there was in fact any appeal at all by Mr. Britnell. It is pretty clear 
that before he appealed he had paid the rates in question, and tlic other facts shew 
ccmdusively that it was a proceeding virtually on the part of the parish ofRcers and 
not of Mr. Britnell. But then it is said, that although the limitation of time exists, 
it is a matter of mere practice, which may be waived by consent. First, then, there 
could be no real consent, for there were no real parties ; but next, it is a point affect- 
ing the jarisdiction of the Sessions {Rex v. Coode, 1 Bott. 27G ; Cald. 464) ; and, if 
80, no consent could be of any avail. All the Acts of Parliament giving the appeal to 
the Sessions are tn pari matertd, and the whole body of them must be looked at to see 
on what terms the power of appeal is given. The distinction between this case and 
tiiat of the Statute of Limitations is this : this Court has at common law power to hear 
an causes ; but there is no inherent common-law right of appeal to the Sessions ; and 
the terms on which that right has been given by statute must be complied with, in 
Cfder to give the Sessions jurisdiction. [Williams, J. — But the company did 
appeal, and their appeal was heard and determined.] It could not be expected that the 
Scffuons would not only decide against the company, but refuse a case and impose 
costs upon them. [Williams, J. — Can the company say to the Sessions, " Hear my 
appeal," and, when it is decided against them, turn round and say, " You had no 
junsdiction?"] The Sessions had jurisdiction to hear that appeal, though the prior 
orders were nullities ; and the appellants asked the Sessions to treat them as such. 
With regard to notices of appeal, there is a provision restoring jurisdiction where the 
ikotices are not in time. There is the expressio unius. But Mr. Kelly contends that if 
^ limitation of time affected the jurisdiction, this Court could not, as it frequently 
does, by mandamus, order the fourth or fifth Sessions to hear an appeal ; but the 
aotver is, that the jurisdiction attaches by the entry of the appeal or the application 
to enter it at the proper time. The case of Rex v. The Justices of Worcestershire (5 
M.& S.457) is an authority to shew that this is a question of jurisdiction. In that 
case Lord EUenborough said, " The plain meaning of 17 Geo. 2, in enacting, ' that 
it shall be lawful to appeal to the next Sessions,* where, by a pre-existing Act, the 
appeal was without limitation of time, is to negative the power of appealing to any 
bat the next. In Rex v. Coode, Lord Mansfield was of opinion that the 1 7th Geo. 2 
(fid confine the appeal, and the Court agreed tliat they must decide that the statute 
kd repealed the 43 Eliz. in this particular." [CoLBRinoE, J. — But having appealed 
to the Michaelmas Sessions, are you in a condition to raise this objection?] Rex v. 
WaoeU (Dougl. 115) supplies an answer to that question. There the Court quashed 
ft late, which was bad on the face of it, though the Quarter Sessions had confirmed 
it on appeal and had refused to grant a case ; and in the case of Much Waltham y. 
Peram (2 Salk. 474) it is said that " whensoever an order is reversed, all things sub- 
leqiiently happening thereto shall be avoided thereby." Is it, then, possible for the 
Crart to say that the rates are bad, but that the orders confirming them are good ? 
Further, if the orders do not shew jurisdiction, they are bad, and these orders do not. 
Hat applies to all cases of special jurisdiction. Green v. Elgie (8 Jur. 187) ; where 
tn order of the Court of Review was held bad for not adjudging the party against 
whom it was issued to be in contempt. Even the Lord Chancellor must upon the 
fiwe of his orders shew jurisdiction. Muskett v. Drummond (10 B. & C. 153). In 
that case, the plaintiff produced an order made by the Lord Chancellor, under the 
6 Geo. 4, c. 16, s. 18, whereby, after reciting a petition to him by Muskett, he ordered 
tiiat if the commissioners should be satisfied that Muskett had proved under the com- 
misaon against B. a debt sufficient to support the commission, contracted not 



94 MAGISTRATES' CASES. 

anterior to the petitioning creditor's debt, the commission should be proceeded in. 
Held, that this was not a valid order, inasmuch as it did not find, or call upon the 
commissioners to find, that the original petitioning creditor's debt was insufficient. 
Christie v. Umvin (11 Ad. & E. 373 ; 3 Per. & D. 204) is a strong authority to the 
same effect. ITiere Coleridge, J., said, " However high the authority may be, where 
a special statutory power is exercised, the person who acts must take care to bring 
himself within the terms of the statute. Whether the order be made by the Lord 
Chancellor or by a justice of the peace, the facts which gave the authority must be 
stated."(fl) [CoLERinoE, J. — If the Midsummer Sessions were right in ordering another 
rate, can you complain of any thing that was done at the October Sessions ? The 
words of the statute (17 Geo. 2, c. 38, s. 6) are very strong; the justices are 
** required " to order and direct the churchwardens to make a new rate, and the 
churchwardens are " required " to make the same. Surely it was right in the June 
Sessions to order a new rate.] The question must still come round to this : had the 
Sessions jurisdiction ? Those words in the 6th section of 17 Geo. 2, c. 38, apply only 
where the appeal is brought in time, and where the Sessions consequently have juris- 
diction. [Patteson, J. — The defect of jurisdiction certainly appears on the face of 
the order, unless consent cures it ; for the rate is stated to have been made on the 
22nd of November ; and there is no mention of an intermediate entry and respite. If 
the rate had no effect until re-allowed, it ought to have been treated as then made.] As 
soon as want of jurisdiction appears, the Court of Quarter Sessions ought to stop, or 
they will be stopped by this Court. (Reg. y. Martin, 2 Q.B. 1037 in notis; and Rex 
V. Tlie Justices of Oxfordshire, 1 M. & S. 446.) In this latter case it was held, 
under a statute requiring six days' notice of appeal, that the Sessions had no authority 
to adjourn an appeal entered without such notice. The last objection is, that the profits 
of trade are assessed by the rates made in July ; that is distinctly sworn ; and since 
the late Act (3 & 4 Vict. c. 89) the rating of profits of trade will affect the jurisdiction 
of the Sessions. [Loan Denmak, C. J. — ^What are the words of that statute ?] The 
overseers are " prohibited from taxing any inhabitant of a parish, &c. in respect of 
his ability derived from the profits of stock in trade, &c. ;" and the Sessions have 
exceeded their jurisdiction by confirming a rate, in which the Railway Company are so 
taxed. [CoLEBincE, J. — ^Are the Sessions then to hold their hands T\ No ; they are 
bound to quash such a rate. [Colerioge, J. — Surely, if they may quash, they may 
also affirm.] No ; they have no alternative. This is shewn by the case of The Chver* 
nors of the Bristol Poor v. Wait (1 Ad. & Ell. 264), in which it was decided that if 
a party is assessed to the poor-rate for premises which he occupies, and also for other 
distinct premises which he does not occupy, and his goods are distrained, for the 
several rates jointly, he is not confined to the remedy by appeal, but may bring an 
action. Cur, adv. vuli. 

Loan Denman, C. J. now delivered the judgment of the Court. — In this case an 
application was made to quash certain orders of the Court of Quarter Sessions for the 
county of Bucks, removed into this Court by writ of certiorari. This case is attended 
with a certain degree of difficulty, owing to the extent and variety of the statements in the 
affidavits filed in support of, and in opposition to, the application. We are not without 
some apprehension that the decision at which we have arrived may give some counte- 
nance to the supposition that this Court will enter into the consideration of questions, 
which are more properly subjects for the consideration of the Sessions, and in which, 
according to long established usage, we disclaim any authority to interfere. The effect 
of such interference would be, that in every instance where that Court has decided 
upon the merits and has refused to grant a case, we should be called upon to erect 
ourselves into a tribunal to try such merits over again upon affidavits, upon the in- 
convenience of which we have fully observed in the course of the present term ; and to 
that observation it is not needful to add more than that it is our deliberate purpose to 
abide by it. Accordingly, our decision in the present case depends, in a great degree, 
upon the orders themselves, the affidavits having been in no respect relied upon, 
except so far as the statements therein contained bear upon the question of jurisdic- 
tion. The orders removed are four in number, by the two former of which, dated the 27th 
(a) See also Re Cktrke (2 a. B. 628).— B. 



TRINITY TEEM, 1844. 95 

of June, 1843, two several rates made for the relief of the poor of the parish of Bum- 
ham, on the 22nd of November, 1842, and the 24th of February, 1843, respectively, 
were quashed; and the two latter orders of Sessions were made on the 17th of 
October, 1843, whereby two several poor-rates for the relief of the poor of the said 
parish of the 14th and 22nd of July were confirmed. From this statement it appears, 
as to the June orders respecting the rates made on the 22nd of November and the 
24th of February preceding, that as to one of them, two Quarter Sessions, and as to 
the other, one Quarter Sessions had passed. It seems, therefore, that a Court of 
Quarter Sessions, not the next after the making of the rates, entertained appeals con- 
cerning these two several rates of November and February, and quashed the same. 
The dates already given shew that the Midsummer Sessions had no jurisdiction over 
the subject-matter without some explanation, and no such explanation is given on the 
&ce of the orders, no entry and respite, or other circumstances to shew that the Mid- 
summer Sessions had jurisdiction. Thus the case stands so far as it appears upon the 
fiEice of the orders. But the question is also to be considered, as it arises out of such 
j)ortion of the affidavits as bear upon this same point of jurisdiction. It appears that 
both the rates of the 22nd of November and the 24th of February wanted the requisite 
declaration of the parish officers, and were therefore void. It was contended, for the 
purpose of shewing that the Midsummer Sessions had jurisdiction, that fresh rates had 
been afterwards made and allowed by the justices on the 26th of March and the 1st of 
April, 1843. But supposing such circumstance available for the purpose, it is wholly 
unsupported by the facts, I'he rates themselves have been subjected to our inspec- 
tion, and it is clear on the face of them, from their titles, that the old rates remained, 
and that nothing in truth had been done except adding a declaration of the parish 
officers at the foot of those old rates, and then procuring a fresh allowance by two 
justices. In either view of the case, therefore, the orders of the Midsummer Sessions 
cannot be sustained ; and the two latter orders of the Michaelmas Sessions are 
obviously dependent upon them ; because by those latter orders the two prior rates of 
the parish of Bumham, of the 14th and 22nd of July respectively, are confirmed, those 
rates on the face of them having been expressly made in pursuance of the orders of 
the Midsummer Quarter Sessions, and in lieu of the rates of November and February, at 
the Midsummer Quarter Sessions quashed, according to the provisions of the statute. 
Upon the whole, therefore, we are of opinion that all the orders of Sessions must be 
quashed. 

Rule absolute. 



TflE QuEBN V, Charles Oxley and Robert Paley, Esqrs., Justices, Re John 

Brown. 

1/ a party tummoned brfore Jtutices at Petty Seagions on a charge of being the putative father qf a 
hattard child under 2 4* 3 Vict, c. 85, «. 1, desiree that his case should be heard at the Quarter 
Sessions^ he must state that desire to the Justices at Petty Sessions^ brfore they begin to hear the 
case, jy he makes that statement then^ they have no jurisdiction to proceed; but if he allows 
them to hear the case at allt he cannot afterwards remove it to the Quarter Sessions, the right given 
him by sec, 3 of that statute not being at all in the nature of an appeal from the Petty Sessions, 

^ order of Petty Sessions upon the putative father of a bastard child to reimburse a parish or town^ 
iHp for its maintenance must be strictly confined to expenses incurred within six months 
previous to the order; and an order which directed a party to reimburse the township 
for expenses incurred from the birth of the child to the date of the order, the birth appearing 
on the face of the order to have taken place twelve months brfore, was held bad, although it ap* 
peared by Ojffidavit that the child had only become chargeable one month brfore the date of the 
order, 

^ order directing payment to the churchwardens and overseers of a township is good enough, 
eUhimgh by affidavit it is shewn to the Court that there are no churchwardens of the township, 

MARTIN, Q. C, in Easter Term last, obtained a rule calling upon Charles Oxley 
and Robert Paley, Esqrs., two of the keepers of the peace, &c., in and for the 
liberty of Ripon, in the county of York, to shew cause why a writ of certiorari should 
not issue to remove into this Court a certain order under their hands and seals, therein 
puticalarly described. 



96 MAGISTRATES* CASES. 

From the affidavits in support of the application and against it, it appeared that, on 
the 20th January last, John Brown, of Hill House, in the township of Markington 
with Wallerthwaite, in the county of York, labourer (the party on whose behalf the 
present application was made), was served with a notice signed by the overseers of the 
poor of tbe township of Ripon, of which the following is a copy : — 
•' Liberty of Ripon, in the West Riding 1 Whereas, Mary Dennison, single woman, 
of the county of York. J was on the 27th day of February last deli- 

vered of a male bastard child, and the said child, on the 6th day of January instant, by 
reason of its said mother being unable to provide for its maintenance, became charge- 
able to the township of Ripon, in the liberty of Ripon, in the West Riding of the 
county of York, and from thence hitherto has been maintained and supported by the 
said township. And whereas we, the undersigned, being the overseers of the poor of 
the said township, have made diligent inquiry as to the father of the said child, and 
find that you, John Brown, are the father of the same ; therefore, take notice, that at a 
Petty Sessions of Her Majesty's justices of the peace for the said liberty, to be holden, 
&c., we, as such overseers, &c., intend to make application to the Court at the said 
Sessions, for an order upon you the said John Brown, to reimburse the said township 
for the maintenance and support of the said child. Given under our hands, &c." 

In pursuance of the above notice, the overseers and churchwardens of the township 
of Ripon, by their attorney, and John Brown in person, and by his attorney, attended 
the Petty Sessions held for the liberty of Ripon, on the 2nd of February last ; and the 
application on the part of the township for the order before mentioned then came on 
to be heard. In support of that application, the attorney for the township, having 
first stated the nature of it, proceeded to call and examine Mary Dennison and Jona- 
than Homer, both of whom were afterwards cross-examined by the attorney for John 
Brown. The attorney for the township then stated to the two presiding justices that 
he had another witness present, who would further corroborate the evidence which had 
been given in support of his application, if the justices required further evidence ; and 
thereupon the justices informed him that they did not require any further corroborative 
evidence. Immediately after that announcement, and not before, the attorney for John 
Brown declared to the justices that his client was desirous that the charge should be 
heard and determined at the then next ensuing Quarter Sessions for the liberty of Ripon» 
and that he (John Brown) was then and there ready to enter into a recognizance, with 
two sufficient sureties, conditioned personally to appear at the ensuing Quarter Sessions, 
to answer to the said charge of being the putative father of the male bastard child 
born of the body of the same Mary Dennison, and to abide the judgment of such Court 
of Quarter Sessions, and to pay all costs, &c., as was the fact ; but no such recogni- 
zance was actually tendered to the Court. On the part of the township it was objected 
that that application was made too late ; for that it ought to have been made at the 
commencement of the hearing of the case, and not after the before-mentioned witnesses 
had been examined and cross-examined ; and the justices, coinciding in that objection, 
determined that the hearing of the charge should be then proceeded with. The only fur- 
ther evidence given was to prove the actual amount of costs incurred ; and at the close 
of the case on the part of the township, the justices called upon the attorney for John 
Brown, and upon John Brown himself, to answer the application, but they severally 
refused to do so. The justices accordingly made their order upon John Brown in the 
following terms, and this is the order specified in the rule : — 

" Liberty of Ripon, in the 1 At a Petty Sessions of her Majesty's justices of the 
county of York. /peace, acting in and for the liberty of . Ripon, in the 

county of York, holden at the Court House, in the city of Ripon, in and for the said 
liberty, on Friday, the 2nd day of February, in the 7th year of the reign of our Sove- 
reign Lady Victoria, &c., and A.D. 1844. — ^Whereas, upon the hearing of the appli- 
cation of the churchwardens and overseers of the poor of the township of Ripon, in the 
said hbertyj seven days' notice of which application having been duly proved bc^fore us 
to have been given by the said churchwardens, &c., to John Brown hereinafter named* 
it appears to us the undersigned, &c., that a male bastard child was lately, that is to 
say, on the said 27th day of February now last past, bom in the township of Marking- 
ton with Wallerthwaite, in the said Uberty, of the body of Mary Dennison, single 






TRINITY TERM, 18M. 97 

woman, and that the said child has, by reason of the inability of the mother of the said 
child to pfTovide for the maintenance of the same child, become chargeable to the said 
township of Ripon, in the said liberty. And whereas it further appears to us, the said 
JQStioes, &c., upon the hearing of such application, and the evidence of the mother of 
tiie said bastard child (such evidence being corroborated in a material particular by 
other testimony to the satisfaction of us, the said justices, and as required by law), that 
John Blown, of Hill House, in the said township of Markington with Wallerthwaite, 
hbouzer, is really and in truth the father of the said bastard child. It is therefore ad- 
judged l^ us, the said justices, that the said John Brown is the father of the said has* 
tnd child ; and we do hereby order that the said John Brown shall forthwith pay, or 
euueto be paid, to the churchwardens and overseers of the poor of the said township 
of RipoD, the sum of 9s. 4d., to reimburse the said township the actual expense 
xneorred in the maintenance and support of the said bastard child from the time of its 
fairth as aforesaid, to the time of middng this our order ; and shall also weekly, and 
eiery week from the date of this order, and so long as the said bastard child shall be 
diaigeaMe to the said township of Ripon, and until the said bastard child shall attain 
tiie age of seven years (if he shall so long live), pay, or cause to be paid, unto the 
dmrchwardens and overseers of the poor of the said township of Ripon, the sum of 
Is. 6d., to re-imburse the said township of Ripon the actual expense to be incurred in 
^ maintenance and support of the said bastard child. Given under our hands and 
tab, the day and year firat above written. 

" Chas. Oxley. (L.S.) 
"RoBT. Palbt." (L.S.) 
It was further sworn, on the part of the township, that the sum of 9s. 4d. men- 
tioDed in the order was the amount of those costs only which had been incurred by the 
towDship between the time at which the child first became chargeable, and the time at 
wldeh the application of the overseers was heard ; and on the part of John Brown, that 
tile township of Ripon has separate overseers but no churchwardens, though there are 
cknrchwardens of the parish of Ripon, which includes several townships, the township 
of Ripon being one. 

Hie notice of the application for the certiorari, which was served upon the justices, 
coatBined by way of recital a statement that the order in question was made by them 
without jurisdiction, inasmuch as they had proceeded with the hearing after Brown 
hd expressed his desire that the case should be heard at the Quarter Sessions ; that 
the onkr was bad upon the face of it, because it ordered the repayment of all the ex- 
penses incurred frY>m the birth of the child to the time of making the order, the time of 
the birth being more than six calendar months before the day of the hearing of the said 
^plication, and that it was also bad because the application appeared to be made by 
the churchwardens and overseers of the poor of the township of Ripon ; and the order 
directed Brown to pay to the churchwardens and overseers, whereas there were, in 
£Kt, no churchwardens of the said township. 

BaiMet, Q.C. and Pickering now shewed cause. — ^This case depends mainly upon 
tiie construction to be put upon the 3rd sec. of stat. 2 & 3 Vict. c. 85, which pro- 
vides that " if the person whom the guardians or overseers shall charge with being the 
patative frtther of any child which has been bom a bastard since the passing of 4 & 5 
Wm. 4, c. 76, shall declare to the justices, in such Special or Petty Sessions, that he 
is desirous that the charge shall be heard and determined at the Quarter Sessions of 
tiie Peace, and shall then and there enter into a recognizance with two sufficient sureties, 
oooditioned personally to appear at the Quarter Sessions of the Peace then next or next 
but one ensuing, as the justices shall think fit, to answer to the said charge, and abide 
the judgment of the Court and pay costs, then the justices in Special or Petty Sessions 
shaE not proceed further to hear the charge, but shall take such recognizance and trans- 
mit it to the derk of the peace ; and in such case all further proceedings in the matter of 
nch charge shall be had before the said Court of Quarter Sessions, &c." Under that 
pionsbn it is contended that the defendant had a right to stop the justices at any 
tiiae, and that is the ground upon which the first objection to this order rests ; but 
^ ^iwds of the clause will not bear that construction ; " not proceed further to hear 
the duffge" implies that the charge has not been heard at all ; for if the hearing had 



96 MAGISTRATES' CASES. 

From the affidavits in support of the application and against it, it appeared that, on 
the 20th January last, John Brown, of Hill House, in the township of Markington 
with Wallerthwaite, in the county of York, labourer (the party on whose behalf the 
present application was made), was served with a notice signed by the overseers of the 
poor of tbe township of Ripon, of which the following is a copy : — 
•* Liberty of Ripon, in the West Riding 1 Whereas. Mary Dennison, single womaii» 
of the county of York. J was on the 27th day of February last deli- 

vered of a male bastard child, and the said child, on the 6th day of January instant, hy 
reason of its said mother being unable to provide for its maintenance, became charge- 
able to the township of Ripon, in the liberty of Ripon, in the West Riding of Uie 
county of York, and from thence hitherto has been miuntained and supported by the 
said township. And whereas we, the undersigned, being the overseers of the poor oi 
the said township, have made diligent inquiry as to the father of the said child, and 
find that you, John Brown, are the father of the same; therefore, take notice, that at a 
Petty Sessions of Her Majesty's justices of the peace for the said liberty, to be holden, 
&c., we, as such overseers, &c., intend to make application to the Court at the said 
Sessions, for an order upon you the said John Brown, to reimburse the said township 
for the maintenance and support of the said child. Given under our hands, &c." 

In pursuance of the above notice, the overseers and churchwardens of the township 
of Ripon, by their attorney, and John Brown in person, and by his attorney, attended 
the Petty Sessions held for the liberty of Ripon, on the 2nd of February last ; and the 
application on the part of the township for the order before mentioned then came on 
to be heard. In support of that application, the attorney for the township, having 
first stated the nature of it, proceeded to call and examine Mary Dennison and Jona- 
than Homer, both of whom were afterwards cross-examined by the attorney for John 
Brown. The attorney for the township then stated to the two presiding justices that 
he had another witness present, who would further corroborate the evidence which had 
been given in support of his application, if the justices required further evidence ; and 
thereupon the justices informed him that they did not require any further corroborative 
evidence. Immediately after that announcement, and not before, the attorney for John 
Bro^Ti declared to the justices that his client was desirous that the charge should be 
heard and determined at the then next ensuing Quarter Sessions for the liberty of Ripon, 
and that he (John Brown) was then and there ready to enter into a recognizance, with 
two sufficient sureties, conditioned personally to appear at the ensuing Quarter Sessions, 
to answer to the said charge of being the putative father of the male bastard child 
born of the body of the same Mary Dennison, and to abide the judgment of such Court 
of Quarter Sessions, and to pay all costs, &c., as was the fact ; but no snch recogni- 
zance was actually tendered to the Court. On the part of the township it was objected 
that that application was made too late ; for that it ought to have been made at the 
commencement of the hearing of the case, and not after the before-mentioned witnesses 
had been examined and cross-examined ; and the justices, coinciding in that objection, 
determined that the hearing of the charge should be then proceeded with. The only fur- 
ther evidence given was to prove the actual amount of costs incurred ; and at the close 
of the case on the part of the township, the justices called upon the attorney for John 
Brown, and upon John Brown himself, to answer the application, but they severally 
refused to do so. The justices accordingly made their order upon John Brown in the 
following terms, and this is the order specified in the rule : — 

" Liberty of Ripon, in the 1 At a Petty Sessions of her Majesty's justices of the 
county of York. /peace, acting in and for the liberty of . Ripon, in the 

county of York, holden at the Court House, in the city of Ripon, in and for the said 
liberty, on Friday, the 2nd day of February, in the 7th year of the reign of our Sove- 
reign Lady Victoria, &c,. and A.D. 1844. — ^Whereas, upon the hearing of the appli- 
cation of the churchwardens and overseers of the poor of the township of Ripon, in the 
said hberty, seven days' notice of which application having been duly proved before ns 
to have been given by the said churchwardens, &c., to John Brown hereinafter named, 
it appears to us the undersigned, &c., that a male bastard child was lately, that is to 
say, on the said 27th day of February now last past, bom m the township of Maricing* 
ton with Wallerthwaite, in the said liberty, of the body of Mary Dennison, sing^ 



TRINITY TERM, 18M. 97 

,» and that the said child has, by reason of the inability of the mother of the said 
child to provide for the maintenance of the same child, become chargeable to the said 
townaliip of Ripon, in the said liberty. And whereas it further appears to us, the said 
jii8tlce8» &c., upon the hearing of such application, and the evidence of the mother of 
the said bastard child (such evidence being corroborated in a material particular by 
other testimony to the satisfaction of us, the said justices, and as required by law), that 
John Brown, of Hill House, in the said township of Markington with Wallerthwaite, 
Uwiirer, is really and in truth the father of the said bastard child. It is therefore ad- 
judged by us, the said justices, that the said John Brown is the father of the said has* 
tvd child ; and we do hereby order that the said John Brown shall forthwith pay, or 
canse to be paid, to the churchwardens and overseers of the poor of the said township 
cf Ripon, the sum of 9s. 4d., to reimburse the said township the actual expense 
ia c oi ied in the maintenance and support of the said bastard child from the time of its 
birth as aforesaid, to the time of middng this our order ; and shall also weekly, and 
eiery week from the date of this order, and so long as the said bastard child shall be 
diaigeable to the said township of Ripon, and until the said bastard child shall attain 
die age of seven years (if he shall so long live), pay, or cause to be paid, unto the 
drarchwardens and overseers of the poor of the said township of Ripon, the sum of 
li. 6d., to re-imburse the said township of Ripon the actual expense to be incurred in 
die maintenance and support of the said bastard child. Given under our hands and 
tab, the day and year firat above written. 

" Chas. Oxlky. (L.S.) 
•• ROBT. Palbt." (L.S.) 
It was farther sworn, on the part of the township, that the sum of 9s. 4d. men- 
tioned in the order was the amount of those costs only which had been incurred by the 
township between the time at which the child first became chargeable, and the time at 
viuch the application of the overseers was heard ; and on the part of John Brown, that 
tile township of Ripon has separate overseers but no churchwardens, though there are 
dtochwardens of the parish of Ripon, which includes several townships, the township 
of Ripon being one. 

The notice of the application for the certiorari, which was served upon the justices, 
contained by way of recital a statement that the order in question was made by them 
without jorudiction, inasmuch as they had proceeded with the hearing after Brown 
had expressed his desire that the case should be heard at the Quarter Sessions ; that 
the order was bad upon the face of it, because it ordered the repayment of all the ex- 
penses incurred from the birth of the child to the time of making the order, the time of 
the birth being more than six calendar months before the day of the hearing of the said 
^plication, and that it was also bad because the application appeared to be made by 
the churchwardens and overseers of the poor of the township of Ripon ; and the order 
directed Brown to pay to the churchwardens and overseers, whereas there were, in 
fiaet, no churchwardens of the said township. 

Bonct, Q.C. and Pickering now shewed cause. — ^This case depends mainly upon 
the construction to be put upon the 3rd sec. of stat. 2 & 3 Vict. c. 85, which pro- 
vides that ** if the person whom the guardians or overseers shall charge with being the 
putative frither of any child which has been bom a bastard since the passing of 4 & 5 
Wm. 4, c. 76, shall declare to the justices, in such Special or Petty Sessions, that he 
b desirous that the charge shall be heard and determined at the Quarter Sessions of 
die Peace, and shall then and there enter into a recognizance with two sufficient sureties, 
conditioned personaUy to appear at the Quarter Sessions of the Peace then next or next 
bat one ensuing, as the justices shall think fit, to answer to the said charge, and abide 
the judgment of the Court and pay costs, then the justices in Special or Petty Sessions 
iball not proceed further to hear the charge, but shall take such recognizance and trans- 
flut it to tiie derk of the peace ; and in such case all further proceedings in the matter of 
todi diaxge shall be had before the said Court of Quarter Sessions, &c." Under that 
poriiion it is contended that the defendant had a right to stop the justices at any 
tine, and that is the ground upon which the first objection to this order rests ; but 
tbe wards of the clause will not bear that construction ; " not proceed further to hear 
the chuge" implies that the charge has not been heard at all ; for if the hearing had 



8B MAGISTRATES' CASES. 

were dated on the 11th of May, 1843, but appeared by the endorsement thereon to have 
been served on the 2nd of June following. These appeals were for the first time en- 
tered, and also heard and determined at the Quarter Sessions for the county of Bucks, 
holden on the 27th of June, 1843, when, by consent of both parties, the two following 
orders were made by the Court. 

** Bucks, 1 At the General Quarter Sessions of the Peace of our Sovereign Lady the 
to wit. J Queen, holden at Aylesbury, in and for the said county, on Tuesday in the 
first week after the 24th day of June, to wit, the 27th day of June, in the 7th year of the 
reign, &c., and A.D. 1843, before Sir Thos. Digby Aubrey, Bart., Geo. Grenville Pigott, 
Esq., the Right Hon. Robt. John Lord Carrington, and others, their fellows, keepers 
of the peace, and justices, &c. Upon hearing the appeal of William Britnell, an in- 
habitant and occupier of lands and tenements in the parish of Bumham, in this 
county, against a certain rate or assessment made for and towards the necessary relief of 
the poor of the said parish, bearing date the 22nd day of November now last past, it is 
ordered by the Court, this present Sessions, by and with the consent of counsel on both 
sides, that the said rate or assessment be, and the same is, hereby quashed, vacated, 
and discharged ; and it is further ordered and directed by the Court, this present Ses- 
sions, that the churchwardens and overseers of the poor of the said parish of Bumham, 
do and shall forthwith, upon notice of this our order, make a new equal rate or assess- 
ment for or towards the necessary relief of the poor of the said parish of Bumham, in 
lieu of the said rate which is hereby quashed, vacated, and discharged. 

'* By the Court.— Tindal." 

The other order made at the same Sessions, for quashing the rate, bearing date the 
24th February, and directing the parish officers to make a new equal rate in lieu 
of that rate, was drawn up in precisely the same form. To these two appeals the 
company were not in any respect parties, and in the affidavits in support of the 
rule various facts were stated for the purpose of shewing that those appeals originated 
in collusion between Mr. Britnell and the parish officers ; amongst others, that the 
parish solicitors acted in the conduct of these appeals as solicitors for the appellant, as 
well as for the parish ; and that either befoje the notices of these appeals were served, 
or before the hearing, Mr. Britnell had paid the amount due from him under the two 
rates then in question ; but there was a denial of this latter fact in the affidavits on the 
other side. Between the making of the two rates of November and February, and the 
entering of Mr. Britnell's appeals, there had been a change in the parish officers of 
Bumham. Subeequently, on the 14th and 22nd of July, in pursuance and under the 
authority of the June orders of Sessions, two new rates were regularly made, al- 
lowed, and published, in lieu of the two rates of November and February/ the headings 
of which were in the form following : — 

" An assessment for the relief of the poor of the parish of Burnham, in the county 
of Buckingham, and for other pui-poses chargeable thereon, according to law, made 
this 14th day of July, in the year of our Lord 1843, after the rate of 66. in the pound, 
in pursuance of an order of the Court of Quarter Sessions, dated the 27th day of June 
last, in that behalf, being in lieu of a rate dated the 22nd day of November last, which 
was quashed by the said Court, upon appeal. 

" Thos. G. Howard, \ ^ 
"Chas. Rd. Lee, JO^^^^^^"- 
" Wm. Bayley, Jun., Churchwarden." 

Against these two new rates the railway company caused two several appeals to be 
entered at the General Quarter Sessions of the Peace holden in and for the said 
county on the 17th October following, being the next Quarter Sessions after the 
making of the two several rates of July, on the ground, amongst others, that those 
rates included the profits of the company's trade. Those appeals were heard at the 
same Sessions, and the Court held that they were bound by the orders of Sessions of 
the 27th June, and that the rates of July being made in pursuance thereof, their le- 
gality could not be gone into by the said Sessions, so as to affect the validity of the 
said orders, until such orders had been set aside by the Court of Queen's Bench, and 
accordingly made two orders confirming the July rates ; which (omitting the merely 
formal part), were as follows :— 



TRINITY TERM» 18U. 89 

" Upon hearing the appeal of the Ghneat Western Railway Company, occupiers of cer- 
lizD lands and tenements in the parish of Bumham» in this county, against a certain 
nteor assessment made for or towards the necessary relief of the poor of the said pa- 
liih of Bomham, bearing date the twenty-second day of July, now last past, it is or- 
dered by the Court, this present Sessions, that the said rate or assessment be, and the 
Mine is hereby ratified, confirmed, and allowed. 

" And it is further ordered and adjudged by this Court, that the Great Western Rail- 
way Company do and shall forthwith, upon notice of this our order, to be given to 
tbm, or one of them, pay, or cause to be paid, to the churchwardens and overseers of 
tiw poor of the said parish of Bumham, or some or one of them, or to Messrs. 
Charsley and Barton, gentlemen, their attorneys, the sum of 5/., for and towards the costs 
and charges and expenses which die said parish of Bumham have been put to in de- 
lending tSis appeal as just and reasonable in this behalf. By the Court. — ^Tindal." 

llie other order which applied to the rate, bearing date on the 14th of July, was 
dmwn up in the same terms, except that it did not contain the last clause as to 



On the part of the company, application was then made to the Court to grant cases 
for the opinion of the Court of QUieen's Bench^ but that application was refused. In 
OQDsequenoe of that refusal, all the before-mentioned orders of Sessions were removed 
isto this Court by certiorari: and, as already stated, a rule nin had been obtained to 
qatsh thoee orders. 

The company's pouitB for argument, as annexed to the paper books, were as 
foflows:— 

lit. All the orders of Sessions are bad, the Courts of Quarter Sessions not having 
juisdiction to make these orders; as appears firom the orders, the extracts from the 
lales, the rates, and the affidavits in support of and against the rule. 

3nd. All the orders of Sesttons are bad, for not shewing jurisdiction on the orders 
tbmselves. 

Srd. The two orders of Sesnons, made on the 27th day of June, 1843, are void 
Older the circumstances mentioned in the affidavits ; and'the appeals not having been 
fD the next Sessions after publication of the two rates of November and February pre- 
ceding, and there being nothing which the Sessions could l^ally quash, the two July 
ates, founded upon the said orders, and the two orders of Sessions of the 17th Octo- 
ber, confirming Uiose July rates, are also void. 

4th. That the two appeals and orders of June were made and obtained, not iond 
fUt, hot by fraud and collusion of the parties thereto, and were not by or for a party 
mggnewedp and that such orders and rates, and all other proceedings founded thereon, 
are invalid, and should be quashed. 

5th. That the two rates of July were bad, being unauthorized by law, and made for 
ictroqpective and other purposes not allowed by law, and the orders of Sessions con- 
€r«ing them are also bad. 

6tfa. The two rates of July being bad, as they include the profits of trade, the two 
orders of Sesnons of October confirming the rates are also bad. 
In last Trinity Term (May 29th), 

Kelif, Q.C.'and Arckbold shewed cause against the rule. — ^Before entering upon 

the points stated for argument, there is here a preliminary objection, that the Great 

Western Railway Company are not entitled to be heard at all in support of this rule. 

They were no parties to the appeals against the rates of November and February ; they 

■ight have appealed against those rates, but not having done so, they are not in a 

■taatiGn to oSyject to £e rates substituted in July. This is an objection to the writ ; 

the writ of certiorari is in the nature of a writ of error in all cases where a Court of 

Becoid takes proceedings contrary to law, and what right has a stranger to the record 

bckfw to bring error ? [CoLSBinoa, J. — ^They did not quarrel with the first rates ; 

bat yon say they can't impeach the subsequent proceedings, not having been parties 

to the app^ against those rates of November and February ; if they did not want to 

be ajipeUants, could they have been req>ondents in that appeal ?] There is no reason 

vfay they should ; the parish officers are certainly the proper respondents ; and if 

^ neglect their duty in that respect* they are liable to punishment. The railway 



102 MAGISTRATES* CASES. 

'"To Abraham Brook, of Woodbridge, in the county of Sufifolk, wine-merchant. 
Whereas complaint and information hath been made, upon oath, before me, Greorge 
Thomas, Esq., one of her Majesty's justices of the peace for the said county, by Edmund 
Jenney, of Hasketon, in the said county, Esq., and one of the sujrveyors of the highways of 
the same parish, that you, the said Abraham Brook, being the owner of a certain form, 
liereditaments, and premises, situate in the said parish of Hasketon, in the occupation of 
Robert Butcher, farmer, had refused or neglected to cut, prune, or plash the hedges, and 
to prune or lop the trees hereinafter mentioned, upon your said farm at Hasketon afore- 
said, that is to say, the several trees on the right-hand side of the carriage-way or cart- 
way, situate in the said parish of Hasketon, leading from Hasketon aforesaid to Boulge 
in the said county, growing or standing in the fence of a certain field, called Lower Jen- 
oiings ; also, the trees growing or standing in the belt or plantation of the right-hand 
side of the said carriage-way or cart- way, approaching the front entrance to the farm- 
house belonging to you, the said Abraham Brook ; and also in the belt or plantation 
on the same side of the said carriage-way or cart-way beyond the said entrance and 
4:he gate leading into your said farm-yard, and also the hedges on the same side of the 
said carriage-way or cart- way, and the trees grqwing or standing in a fence adjoin- 
ing a certain field, called Short Lands ; and likewise the hedge on the left-hand side 
of the said carriage-way or cart- way, and the trees growing or standing in the face of 
a certain other field, called Whimey Field, whereby the sun and wind are excluded 
from the said carriage-way or cart- way to the damage thereof, and whereby also ob- 
structions are caused in the said carriage-way or cart- way, contrary to the statute in \ 
the 5th and 6th year of the reign of his Majesty King William the Fourth, intituled, 
" An Act to consolidate and amend the laws rdating to the highways in that part of 
Great Britain called England,' which hath imposed a forfeiture of a sum not exceed- 
ing 40s. for the said offence. These are, therefore, to require you personally to appear 
before the justices to be assembled at their Special Sessions for the highways, to be 
bolden at the Shire-hall, Woodbridge, in the said county, on the 27th day of Novem- 
ber instant, at the hour of eleven in the forenoon, to answer to the said complaint and 
information made by the said Edmund Jenney, who is likewise directed to be then and 
there present, to make good the same. Herein fail not. Griven under my hand, tiiii 
23rd day of November, 1839. . " * Georob Thomas.' " 

The hedge in question is one of the hedges mentioned in the said summons. The 
plaintiff appeared at the said Special Sessions ; whereupon, at the said Special Ses- 
sions, the said George Thomas and Robert Newton Shawe, then being the justices 
there assembled, issued the following order on information and complaint, as therda 
mentioned : — 

" Whereas, on the 23rd day of November, 1839, information and complaint was made 
on oath unto me, George Thomas, Esq., one of her Majesty's justices of the peace 
for the said county of Suffolk, and re-sworn on the 27th day of the said month of 
November, before me, the said George Thomas, and Robert Newton Shawe, one other 
of her Majesty's justices of the peace for the said county, by Edmund Jenney, of 
Hasketon, in the said county, Esq., and one of the surveyors of the highways of 
the same parish, that Abraham Brook, of Woodbridge, in the said county, wine* 
merchant, being the owner of a certain farm, hereditaments, and premises, situate in 
the said parish of Hasketon, in the occupation of Robert Butcher, farmer, had refused 
or neglected to cut, prune, or plash the hedges, and to prune or lop the trees here- 
inafter mentioned, upon his said farm at Hasketon aforesaid, that is to say, the seve- 
ral trees, &c. [describing them as in the summons], whereby the sun and wind were 
excluded from the said carriage-way or cart-way, to the damage thereof, and whereby 
also obstructions were caused in the said carriage-way or cart-way, contrary to the 
statute in that case made and provided. And whereas the said Abraham Brooks 
having appeared before us, the said justices, at a Special Sessions for the highways, 
held at the Shire-hall, in Woodbridge, in the said county, on the 27th day of Novem- 
ber instant, in pursuance of a summons duly served upon him to answer the said 
charge, and the said offence having been fidly proved before us, upon the oath of 
George Runnacles, also one of the surveyors of the said highways, we, the said 
justices, do hereby order the said Abraham Brook to cause the said hedges to be cut. 



TRINITY TERM, IdU. 91 

/elief of the poor, or shall have any material objections to any person or persons being 
put on or left oat of such rate or assessment, or to the sum charged on any persons 
therein" it shall be lawful for such person or persons, " giving reasonable notice to 
the churchwardens or overseers of the poor of the parish, township, or place, to ap- 
peal to the next General or Quarter Sessions of the Peace for the county, riding, &c., 
irhere such parish, township, or place lies." The question is, is the next practicable 
Quarter Sessions the only Sessions that have jurisdiction to entertain the appeal ? and 
liat question may be answered by a reference to what is the frequent practice of this 
36urt. Whenever a Court of Quarter Sessions improperly refuses to hear an appeal^ 
ids Court will grant a mandamus to compel them. During the argument on that 
wiandamus it frequently happens that two or three Quarter Sessions elapse, and it is 
3oly the third, or fourth, or fifth Quarter Sessions which ultimately hears the appeal. 
Then if no Court of Quarter Sessions has jurisdiction except the next after the making 
of the order or rate appealed against, this Court orders the Sessions to do that which 
is beyond their jurisdiction. [Coleridge, J. — In all such cases the Sessions are di- 
rected to enter continuances until the day of hearing. Lord Denman, C. J. — If at 
the proper time the Sessions neglect their duty, and then this Court orders them to da 
it, they can't in tliat case be permitted to defeat the Court and the law by then turn- 
ing round and saying " now the time is past."] Certainly they cannot do *o, because 
it is a matter of practice and not of jurisdiction. It is like the notice of appeal ; the 
practice of the Quarter Sessions is not to require proof of the notice, unless the objec- 
tion be taken, but they would if it affected their jurisdiction. [Pattrson, J. — By 
statute 41 Greo. 3, c. 23, s. 5, by consent, appeals may be tried without notice.] 
There was a notice in this case, but it is clear that the want of notice does not affect the 
jurisdiction, because a defect of jurisdiction ccinnot be cured. [Coleridge, J. — Ap- 
peals are entirely of statuteable creation ; they were given by the statute of Elizabeth 
(43£liz. c. 2), and continued by statute 17 Geo. 2; and upon that latter statute it 
1m8 been held that the appeal must be to the next practicable Sessions ; then is not this 
I jurisdiction limited by the very statutes which create it ?] That depends upon 
whether they are to be liberally or narrowly construed. The Statute of Limitations 
ittes this language — " no action shall be brought" — and yet that defence must be 
^lecially pleEided. The jurisdiction of the Court is not touched by that statute. 
[CoLSRiDOB, J. — No ; but this Court has propria marte power to try causes.] There 
is a provision in this statute (17 Geo. 2, c. 38, s. 4), that, ** if it shall appear to the 
laid justices that reasonable notice was not given, then they shall adjourn to the next 
Qnarter Sessions, and then and there finally hear and determine the same." llien, if 
this clause is to be construed hterally, no other but the first or second Sessions can 
hear; for expressio unius est exclusio alterius ; but this Court often orders the fourth 
or fifth Sessions to hear. [Coleridge, J. — ^Do you hold, then, that if ten years after 
the matter complained of an appeal is entered and heard, and the Sessions refuse a 
cue, this Court can't interfere ?] If the respondents objected, that would be like a 
plea of the Statute of Limitations ; still, if the Sessions refused a case, this Court 
ooold hardly interfere after its recent decisions, (a) However, the fair and reasonable 
OQDstruction of the Act is, that this is a regulation intended for the benefit of the 
leqxmdents ; not imperative, not compulsory, but one which may be waived by the 
party for whose benefit it was intended. That being the case, the June Quarter Ses- 
ttOQs had authority to hear the appeals in question. The next point is, that these 
orders of Sessions are bad, because, as is alleged, the appeals agunst the first amended 
ntes were the result of arrangement and collusion between the party appellant and 
the parish ; some of the facts from which that inference is raised are disputed ; but 
whether there were collusion or not is immaterial ; Mr. Britnell had an unques- 
tionable right to appeal ; and no man can be prevented from exercising a dear legal 
rig^t because he colludes with another person as to the exercise of it. Another 
point is, that the rates of July are bad, as being retrospective ; but all rates made 
in lieu of others under the statute must be so ; and the last objection is, that 
thoie rates included profits of trade; but that was a question on the merits of 
the appeal* which had been decided by the Sessions. [Lord Denman, C. J. — ^We 
(a) See Reg. ▼• Kesteven (3 U. B. 810, and ante, p. 8). 



lOi MAGISTRATES* CASES. 

Hiere is error also in this ; to wit« that by the record aforesaid, it appears that the ver- 
dict aforesaid was given upon the said issue, between the parties aforesaid joined, for 
the said Abraham Brook ; whereas, by the law of the land, the verdict upon the said 
issue ought to have been given for the said Edmund Jenney and Gteorge Runnades : 
there is error also in this ; to wit, that by the record aforesaid, it appears that the afore- 
said judgment, in form aforesaid given, was given for the said Abiaham Brook against 
the said Edmund Jenney and George Runnacles ; whereas, by the law of the land, the 
said judgment ought to have been given for the said Edmund Jenney and George Run- 
nacles against the said Abraham Brook. And the said Edmund Jenney and Gborge 
Runnacles pray that the judgment aforesaid, for the errors aforesaid, and for otlier 
errors in the said record and proceedings, may be reversed, annulled, and altogether 
holden for naught, and that they may be restored to all things which they have lost by 
occasion of the said judgment." 

Joinder in error. 

The case was argued in last Easter vacation, Thursday, May 9th, before Tindal» 
C. J. ; Pollock, C.B. ; Cresswell, J. ; and Parke and Rolfe, Bs. 

Martin, Q.C. for the plaintiffs in error (the defendants below). — This case was 
originally tried before Patteson, J., at the Suffolk Summer Assizes for 1840^ 
when the defendants put in evidence, in proof of justification, the order of S])ecial Set* 
sions, now before the Court ; it was then objected that that order would not protect Iter 
defendants, as it was bad on several grounds, but the learned judge held it to be insuf- 
ficient. Upon a motion for a new trial, the Court of Queen's Bench were of opinioB 
that the order was bad, and directed a new trial accordingly, (a) The question hov 
far this document, though defective, bears upon the case of the plaintiffs in error, vm 
not considered by the Court of Queen's Bench, and this order was clearly good in re- 
spect of a matter entirely distinct from the grounds given in the judgment of that Court. 
The 56th sect, of the Highways Act (5 & 6 Wm. 4, c. 50). (b) provides for two en- 
tirely distinct cases ; one, in which a carriage-way or cart- way is prejudiced by the 
shade of any hedges, or by any trees growing in or near such hedges, whereby the son \ 
and wind are excluded from such highway ; and the other, in which any obstructioii is j 
caused in any carriage-way or cart- way, by any hedge or tree ; — ^in either of those two 
cases it is lawful for a single justice, on the application of the surveyor, to summon liie I 
owner before the justices at a Special Sessions for the highways, who are to detemune 
the matter, and make an order therein ; but the first point is, that the surveyor does 
not act under that order, or by the authority of the justices at all, but under the au- 
thority of the Act itself, which imposes upon him the duty of taking care that tfaB 
highways are not prejudiced by the exclusion of the sun and wind, or obstructed bf 
any hedges or trees. The Act expressly points out the duties of the surveyor ; sad 

(a) Brook v. Jenney and Another, 2 Q.B. 265. moved ; and the question as to the cattiog, pnudaf^ 
\b) An Act to '* To consolidate and amend the or plashing such hedges, or the pnmine and lop- 
Laws relating to Highways in that part of Great ping such trees, or the removal of vi& ob«tn0> 
Britain called England." Sect. 65 enacts " that if tions as aforesaid, shall, upon proof of the sovioi 
the surveyor of the highways shall think that any of such summons, and whether the said owner aU 
carriage-way or cart-way is prejudiced hy the shade tend or not, be determined at the discretion of waA 
of any hedgies or by any trees (except those trees last-mentioned justices ; and if such justices thai 
planted for ornament or for shelter to any hop- orderand direct that such hedges shall be eQt,pni]Md» 
ground, house, building, or court-yard of the orplashed, or such trees pruned or lopped, in maimar 
owner thereof) growing in or near such hedges or aforesaid, or such obstruction removed, the mM 
other fences, and that the sun and wind are ex- owner shall comply therewith within ten days aflK 
duded from such highway, to the damage thereof, a copy of such order shall have been left at tht 
or if any obstruction is caused in any carriage-way usual place of abode of the said owner, or of Ut 
or cart-way by any hedge or tree, it shall be lawful steward oragent, and in default thereof, shaU forftlk» 
for any one justice of the peace, on the application of on conviction, a sum not exceeding 408. ; and tlit 
the said surveyor, to summon the owner of the said surveyor, if the order of the said juUfaes is aot 
land, on which such hedges or trees are growing complied with, shall and he Is hereby anthortod 
next adjoining to such carriage-way or cart-way, to and required to cut, prune, or plash such hedgai^ 
appear before the justices at a Special Sessions for and to prune and lop such trees, for the bendlt mi 
the highways, to shew cause why the said hedges improvement of the highway, and to remova w»dk 
are not cut, pruned, or plashed, or such trees not obstructiou as aforesaid, to the best of his sldll aai 
pruned or lopped, in such manner that the carriage- judgment, and according to the true Intent aai 
way or cart-way shall not be prejudiced by the shade meaning of this Act,'* the owner to repay tlie WQt» 
thereof, and that the sun and wind may not be ex- veyor lUl expenses, and the expenses and peaal- 
duded from such carriage-way or cart- way to the ties to be recoverable by distress, after proof ocftMt 
damage thereof, or why the obstruction caused in a justice at Special Sessions, 
lueh carriage-way or cart-way should not be re- 



SITTINGS AFTER TRINITY TERM, 1844^ 105 

on it then be a conditioii precedent to his right to interfere that there shall be a good 
(vder <tf justices ? [Crbsswbll, J.— -Does the surveyor's duty arise until the owner 
bu ne^ected to obey the order ?] An order of justices is certainly in one sense, and 
Id & certain extent, a condition precedent to the right of the surveyor to interfere ; but 
the question is, whether the surveyor can be treated as a trespasser, on account of some 
BiBUte defects in the order. The Act gives an appeal agsdnst the order ; and in that 
vty its form and merits may be scrutinized ; but so long as the order in point of fact 
exists, the justification to the surveyors remains. The thing to be done is the same, 
whether the owner does it or the surveyors ; and there is no provision that any copy of 
tfie order shall be served upon the latter ; the fact of an order being directed to the 
owner, and being disobeyed by him, is all that the surveyors are bound to know before 
they proceed to do the things themselves. It is no part of the condition that the order 
ihall not be in any respect defective. Hail v. Biggs (Salk. 674) is a decisive autho- 
rity to shew that an order, though defective, is stiiU an order, till avoided. This order 
■ not directed to the surveyors, nor made with their privity in any way ; can they then 
be made trespassers by that which is not their authority for acting ? But this order 
ii good at all events in part. Orders and convictions are not subject to the same rule 
tf coostmctiQn ; for no intendment is to be made in favour of the latter, but every rea- 
nnble intendment in favour of the former. R. v. Aire and Colder Navigation Company, 
per BuUer, J. (2 T. R. 666), and the authorities collected in 1 Williams' Bum's 
ivtioe, p. 693, n.) Then applying this rule of construction to the present order, it 
wtkj well be understood that tiie words, " the said obstruction complained of," refer to 
^ excluuon of the sun and wind ; the word " obstruction" will bear that meaning ; 
nd then the order must be read as an order to cut, prune, and plash the hedges, &c., 
nas to prevent " the obstruction" of the sun and wind ; and that is a sufficient spe- 
ci&atbn of the manner in which the hedges were to be cut, pruned, and plashed. 
[TiKDAL C.J. — ^" And the said obstruction removed** is the language of the order.] 
ben supposing that that necessarily means some obstruction to the road, still there is 
CMo^ to make this a good order ; because it recites a complaint that the owner had 
Mgl^^ted to cut, prune, and plash, &c., whereby obstructions were caused in the said 
oniage-way or Cart- way, and then directs him to cause the said obstruction to be re- 
loved ; that obstruction may be caused by the position of some tree, and the order 
Hyat least stand as to that. [Pollock, C.B. — This point was not raised in the Court 
tf Queen's Bench.] It seems to have been just mentioned at the end of the argument. 
VbLLocK, C.B.— It doesn't at all follow, even if you are right on that point, that the 
' Cmnt of Queen's Bench would have granted a new trial.] If the ruling of the learned 
jidge be at all incorrect, this Court will order a new trial. The direction must be 
good as to the whole order, because the damages are assessed generally; and if the order 
it good in part aqd bad in part, the amount of damages may be affected by the extent 
flftfae jostjfication. [Pollock, C.B. — ^You distinguish this case from that in the 
Qoeen's Bench ; because you say here that if the. order is good in any respect, there 
isght to be a new trial ; whereas there you said that if it were bad in any respect, there 
isght to be a new trial.] If there is an order, substantially deciding upon the of- 
ftaee, that is enough ; it can be no more than a general order ; it would be quite im- 
paesiUe for the justices to specify minutely what was to be done. 

Ktify, Q. C. contrit. — It is unnecessary to argue the general principle of law, that 
M to all acts done by magistrates, their jurisdiction must appear upon the face of their 
eriers, and those orders must strictly follow the statute under which they are made in 
erier to be of any validity. Rex v. Austreg (6 M. & S. 319), where Lord Ellen- 
borongfa said : " It is also a general principle of law, wherever a power is given to any 
peiticnlar persons to do any written act in any particular manner, or imder certain par- 
tieohr circumstances, whether it be to parish officers or magistrates, to grant ceridfi- 
cetes, under which, if duly executed, other persons, especially public officers, are bound 
ts act, or to grant warrants or make orders, that their authority must appear upon 
fte instrument itself. It must thereby appear that they are the persons authorized, 
Md that the certificate, warrant, or order, was made in the manner and under the cir* 
eomgtmces required; otherwise, the certificate, warrant, or order, is not obligatory, but 
void." Here the making of a valid order by the justices, and the disobedience of that 
order, are conditions preosdent to the right of the surveyors to do the act complained of* 



106 MAGISTRATES* CASES. 

It is said, on the other side, that the surveyors do not act under the order, whicli is 
not directed to them. But the distinction is quite unsubstantial ; their right to invade 
private property depends upon the making of a valid order, and the disobedience of it 
by the owner of that property ; and whether the order is addressed to them or not it 
wholly immaterial. Neither can it be contended that the surveyors have no notioeof 
the order ; for they are the persons who are to make the complaint, and set the justioeft 
in motion. Then, is the validity of the order immaterial ? If one defect may be con- 
sidered immaterial, any other may. [Parke, B. — It must be an order, which die 
party is bound to obey.] Certainly ; if an order is sufficient which complies "mth the 
statute neither as to the parties nor the subject-matter, any order to do any thing, if 
disobeyed, would give the surveyors this au^ority ; and that position will scarcely be 
contended for. The case of Reg, v. Martin (2 Q. B. 1037, in notis ) is in point. The 
marginal note of that case is as follows : " Where justices in special sessions make an 
order under stat. 5 & 6 Wm. 4, c. 50, ss. 94, 95, directing an indictment for the noii» 
repair of a highway to be preferred against the inhabitants of a parish, the duty or 
obligation to repair having been denied by the surveyor on behalf of the inhabitants of 
the parish, on the hearing of a summons under sect. 94, such order must shew on the 
face of it that the Special Sessions is held within the Special Sessions division in which the 
highway is situate. And, if this be omitted, any order of Quarter Sessions on the defend* 
ants for the costs of such prosecution is wholly void, even though it should appear byredtd 
on the record of Quarter Sessions that tlie Special Sessions were held within the proper di- 
vision, and though in fact they were so held." Now, what is the order in this case ? The 
statute says, any justice may summon the owner " to shew cause why the said hedges tie 
not cut, pruned, or plashed, or such trees not pruned or lopped in such manner that the er- 
riage-way or cart-way shall not he prejudiced by the shade thereof, and that the sun and wisi 
may not be excluded from such carriage-way or cart -way, to the damage thereof or wif 
the obstruction caused in such carriage-way or cart-way should not be removed, &c. ; and 
if such justices shall order and direct that such hedges shall be cut, &c., in mmuur 
aforesaid, or such obstruction removed," the owner is to comply therewith within t» 
days. An order, therefore, imder this clause, to be good, must direct the owner to cot; 
prune, or plash his hedges in such manner that the carriage-way or cart- way shall not 
be prejudiced by the shade thereof, and that the sun and wind may not be excluded 
from the said carriage-way or cart- way ; but in this case the magistrates have ordered 
Brook simpliciter to cut, prune, or plash ; they have issued an order which could be n» , 
guide to him as to what he was required to do — an order which he might obey withont 
complying with the statute, and which he might disobey without giving the surteyon 
authority to commit this trespass. But the subsequent words, " and the said obstine- 
tion complained of, to the injury or damage of the said highway, removed," are relied oa 
by the defendants below. But the letter and spirit of the Ace are alike opposed to the 
construction attempted to be put upon those words. There is, under this Act, no sodk 
offence as that of neglecting " to cut, prune, and plash, &c., whereby obstnictiooi 
are caused to a carriage-way or cart-way ;" but that is the offence set out in the com* 
plaint, to which the above words refer. The Act applies to two distinct offences : oner 
the neglecting to cut, prune, or plash, &c., in such manner that the highway may not 
be prejudiced by the shade, and the sun and wind may not be excluded ; the other, the 
neglecting to remove any obstruction caused in such highway ; and the former is the 
only offence charged. [Crbsswell, J. — Both offences are charged in the complaint} 
No ; the offence charged in the complaint is that Brook refused or neglected to cot, 
&c., the hedges, whereby the sun and wind were excluded, and whereby obstructioai 
were caused ; but that is not charging him with the neglect or refusal to remove an 
obstruction. The two offences are distinct, and each must be made the subject oft 
distinct charge. The charge here is the neglect to cut, prune, and plash—the obstnic* 
tion being merely the consequence ; what that obstruction is, is left quite uncertaiii, 
and those latter words, therefore, do not at all remove the objection that this order it 
not sufficiently specific — that it would leave the owner in doubt as to what he wat 
required to do. Neither is this by itself a good order or conviction for an obstruction 
in a carriage-way ; the construction of this document must be the same as if it were a 
conviction ; and in order to give it validity on this last ground, there ought to hkit 
been a distinct complaint that there were certain hedges or trees on the land of the 



SITTINGS AFTER TRINITY TERM, 1844. 107 

lamtiff below, by which obstructions were caused to the highway, and that he, having 
sen required to do so, had not removed them. Another point, which was not one of the 
rounds of decision in the Court of Queen's Bench, is conclusive against this order, 
he statute says, " it shall be lawful for any one justice of the peace, &c., to summon 
le owner of the land on which such hedges or trees are growing next adjoining to such 
nrriage-way or cart- way;" and it nowhere appears in this case that the plaintiff below was 
be owner of land " next adjoining " the road in question. The only description given is of 
' several trees on the right-hand side of the carriage-way, &c.," and " the trees and 
ledges on the same side of the said carriage-way or cart- way, growing or standing in a 
ence adjoining a certain field, called, &c./' and such description is wholly insufficient. 
To say of a house that it is on the right-hand or left-hand side of a road may mean that 
i oicroaches upon the road, or that it is at a considerable distance from it. There was 
1 case before the Court of Queen's Bench the other day, where the question was, 
irbether the words " along the west bank of the river " in a Road Act were complied 
with by a line of road which kept on that side of the river, but was in some places 
distant from the bank seventy or eighty 3rards ; and the Court held it to be a sufficient 
compliance with those words, (a) In this case, if there were only a narrow strip of 
bad between the fence and the road, then the surveyors would have no jurisdiction ; 
far the statute says " next adjoining ;" and the language used is quite consistent with 
that supposition. This objection, as it affects the jurisdiction of the justices and the 
mrveyors over Mr. Brook, goes to the validity of the whole order. 

Martin, Q.C. in reply. — It does in substance appear that this land was " next ad- 
joining" the carriage-way ; the language used is quite sufficiently accurate to support 
this Older ; but if there were, as suggested, a strip of land between the fence and the 
roid, the plaintiff below would primd facie be taken to be the owner of the land ad 
medimnfiium via. Cur. adv. vult. 

TiNDAL, CJ. now delivered the judgment of the Court. — In this case the plaintiff 
below brought an action of trespass against the defendants for breaking down his close 
and cutting down and destroying the hedges and fences, and felling and cutting down 
the trees, bushes, and thorns of the plaintiff. The defendants pleaded not guilty by 
ibitate ; and on the trial before Brother Atcherley, it appeared that the plaintiff being 
the owner of a feurm, demised the same to a tenant, excepting timber, timber trees, 
nd all other trees, stands, pollards, woods, underwoods, bushes, and thorns, other 
than such bushes and thorns as were necessary for the repair of the fences. The lease 
contabed a covenant by the tenant to cut, cleanse, and scour the fences and ditches, 
sod to keep the fences in good repair, on condition of the landlord finding rough wood 
far making such repairs, if growing on the premises ; and the plaintiff covenanted to 
&id such wood. Evidence was then given that the defendants cut down a hedge on 
the &rm of the plaintiff, and adjoining to the highway, and the bushes and thorns 
there, particularly sixteen thorn trees of fifty years' growth, which never had been cut 
|iown before, but which grew on the side of the bank in the hedge. The defendants 
tiiUed witnesses to prove that the alleged thorn trees were only thorns, and that they 
Wng surveyors of the highways, a certain carriage-way there was prejudiced by the 
ihade of the hedge, and the exclusion of the sun and wind thereby, and that the 
ledge obstructed the highway ; that they applied to a justice of the peace, and after- 
nrds obtained the following order of two justices at the Special Sessions for the 

I' [hways. [His lordship then read the order.] This order was served on the plain- 
', and he did not within ten days cause the hedges or trees to be cut, pruned, or 
Inhed, so that the sun and wind should not be excluded, nor did he remove the 
wtniction; thereupon the defendants, as surveyors, cut, pruned, or plashed the 
fidge, and removed the obstruction, and in so doing cut down the thorns or thorn 
ees. [After disposing of the first objection, which arose on the construction of the 
ate, the learned judge proceeded :]•— The second objection taken on the trial was to 
le validity of the order of the justices. — ^Brother Atcherley ruled that the order was 
together iMd on the face of it. The defendants then insisted that if it were so, 
ill the defendants were justified in acting as they did, there being a subsisting order 
lappealcd from and disobeyed. The learned judge held the defendants were not 
(c) The csMrcfflrred to it that of Reg. v. Wiggenhall St, Otrmabm, nportcd mU, p. 90. 



106 MAGISTRATES' CASES. 

justified unless the order was valid ; and in the propriety of this latter ruling we lU 
concur, being of opinion that the surveyors cannot act unless there has been a pn- 
Tious default of the party in obeying a valid order. It is no answer to say that the party 
might have appealed from it, and Uiat if he did not, third persons might act as if be 
had acquiesced ; so to hold would in effect be to deprive parties of part of the time fat 
appeal allowed by the statute, namely, fourteen days, the surveyors being authorized 
to act at the expiration of the first ten. The only remaining question is, whether tbe 
direction of the learned judge, that the order was invalid altogether, can be supported ; 
we think it cannot, and that it is bad in part only. When this case was before the 
Ckrart of Queen's Bench after the first trial (2 Queen's Bench Reports, 265), thit 
Court directed a new trial ; [my Brother Patteson having been of opinion on the tzial 
that the order was good, and a protection to the surveyors as to all tiiey did, but the 
Ck>urt, and my Brother Patteson also on further consideration, thinking that the order 
was bad ;] and the principal ground assigned was, that the direction in the order, " to 
cut, prune, and plash," was general, without any description of the extent to which it 
was to take place, so that any cutting, pruning, or plashing would have been a com- 
pliance with the order. This was all that was necessary to be decided on a motion for 
a new trial ; but we are now called upon to decide whether the order was altogetlMr ; 
invalid ; for if it was invalid in part only, and the remainder was a justification m aogr | 
of the acts done, the direction of my brother Atcherley was wrong. In the azgomot i 
before us, it was contended that the oonstructicm of the order by the Court tf 
Queen's Bench was wrong, and that it was plain that the justices intended that 
the cutting, pruning, and plashing should be made to such an extent as to remofv 
the obstruction to the access of the sun and wind to the road, as well as Ik 
obstruction to the highway itself by the hedges and trees adjdning. We canao^ 
however, concur in this mode of reacting the oider. We agree that a reasonaBk ooai 
struction must be put upon the whole instrument, without making any intendment 
for or against it. But it appears to us by the context, which contains a recital of the 
summons, that the exclusion of tiie sun and wind by the trees and hedges, and tks 
obstruction to the road, are treated as different things, as indeed the enactment of the 
statute 5 & 6 Wm. 4, c. 50, s. 65, clearly means that they should ; and conseqaeadj 
there is no direction in the order as to the extent to which tiie cutting and pruung 
was to take place with reference to the injury to the hi^ road by the exdusion of Ito 
mm and wind. If the order had followed the summons in this respect, and directai 
the plaintiff to cut, prune, and plash the hedges, and prune and lop the trees, so as t» 
prevent the sun and wind from being excluded, it might have been sufiicient, witfaoot 
any more precise direction as to the number of feet or inches that were to be cut and 
pruned. We therefore agree with the Court of Queen's Bench in the view whiditiiey 
took of this part of the order ; but it is said that the remainder of the order ia good* 
and is sufiicient to justify the defendants in removing any actual obstructions to titt 
highway by the hedges or trees, or at least such as were caused by the projecting 
branches of the trees or hedges, and which might be removed by cutting, r^****"g» 
lopping, or pruning, though it would not justify such further cutting as was ncccsMuy 
to prevent the hedges or trees from damaging the road by excluding the sun and wind; . 
and we are of opinion that the order in this respect is good, and that reading the mam* 
mons and the order together it sufiiciently appears that there is a complauit by tSbm 
surveyor of the obstruction to the road by the hedges and trees, whksh required tke 
cutting, plashing, pruning, and lopping, and a duection to remove that obatnietioB. 
So feur, however, as it relates to the trees, the order is defective, as there is no state* 
ment that they were not planted for ornament or for shelter to a hc^eround, dtc^ 
which trees are excepted in the 65th section. It is good, however, wiu respect to 
the hedges. It was, however, objected to the order, l&at it was altogether void for tke 
want of a statement that the plaintiff was the owner of the land next adjoining to tke 
road ; but we think the statement that the trees were growing on the plaintiff's form, 
and on the side of the road, equivalent ; they could not be growing upon the road-side^ 
unless they were close to it, according to tiie strictest construction of tbe law. We 
are therefore of opinion, that the order, though informal, is good in part, and gave 
authority to the defendants to cut, prune, and plash the hed^, so as to remove tlie 
actual obstruction to the cart-way occasioned by the branches of the thorns* bushes* 



SITTINGS AFTER TRINITY TERM, I8U. 109 

jid shrubs forming part thereof, but no further. Therefore there must be a veiiire de 
woo, and on the new trial the jury will have to inquire whether the defendants did 
lore than this^ and to assess the damages incurred by the plaintiff, if they did. This 
iew of the case may make an end of it, and prevent the necessity of any further 
rocecdings. 



Q.B. June 26. 

^ QcEENv. John Clabke, and William Prockter Thomas, Clerks, Justices, &c. 
Re Hugh Baker Bellett. 

ifmif who i» charged be/ore jtuiieeg at the Petty Semons with being the putative father of a 
itttard child under 2^3 Vict. c. 85, waives any right tJtat he may have to object to the jurisdiction 
^tkejtutices, by taking part in the proceedings at the hearing qfthe charge ^ as by cross-examining 
ike witnesses or addressing the justices in his own defence upon the merits of the case. He should 
mlkdraw altogether as soon as their jurisdiction ceases. 

IN Easter Term a rule was obtained, calling upon the Rev. Jn. Clarke and the Rev. 
Wm. Prockter Thomas, two justices in and for the county of Somerset, to shew cause 
ikf a writ of certiorari should not issue, to remove into this Court a certain order 
Bide by them at a Petty Sessions held at the Town-Hall, Wellington, on the 4th day 
I Jan. 1844, adjudging one Hugh Baker Bellett to be the putative father of a female 
Mtard child, and ordering him to reimburse the Wellington Union for the expenses 
Konred in the maintenance of the said bastard child. The following facts appeared 
ipOQ the aflidavits for and against the rule. The application for the order above men- 
aooed was made by the Guardians of the Wellington Union, in the first instance, on 
Ik 7th Dec. 1843, due notice of that application having been previously given to the 
pBtT charged ; but in consequence of the absence of his attorney, the case, after Bellett 
bd admitted the service of the notice, was adjourned to the 4th of January following, 
fffaea Bellett himself attended, and, before the hearing commenced, desired tlie justices 
to transmit the case to the Quarter Sessions, he then offering to enter into a recogni- 
nace with two sureties to appear personally there to answer the charge, &c. ; but the 
JKtices refused to receive the recognizance, and proceeded to hear the complaint. 
Sneral witnesses were then called in support of the application, and were cross-exa- 
ttoed by Bellett, who also addressed the justices in his own defence, before the order 
B question was made. 

Godson and Pashley now shewed cause. — ^The main question here is, whether the 
pirty charged with being the putative father of a bastard child, under the provisions of 
itit. 2 & 3 Vict. c. 85, waived his right to have the case heard and determined at 
k Court of Quarter Sessions by his attendance at the Petty Sessions, and by the part 
ifaich he took in the proceedings there, after the justices had refused to accept his 
ttognizance ; and it is submitted that he did. His remaining after that time, and 
loss- examining the witnesses, amounted to a consent on his part to the course taken 
If the justices; and if so, he cannot now avail himself of the objection which he 
km consented to waive. It is a general rule, that no advantage shall be taken of an 
ngularity after the party has taken a fresh step, and is so laid down by Alderson B., 
I Cooze V. Neumegen (9 Mee. & W. 290). In that case there was a variance between 
le issue and the writ of trial ; and at the trial the defendant's attorney appeared only 
) protest against the proceedings, on the ground of that irregularity ; but the Court 
fused afterwards to set aside the issue and all subsequent proceedings, saying, that 
if a defendant wished to take advantage of an irregularity in the proceedings, he 
ODld not appear at all at the trial, but should allow the plaintiff to go on at his 
rfl." Farwig v. Cockerton (3 Mee. & W. 169) was a similar case, and there Parke 
, laid : •' If you meant to take advantage of the irregularity you ought to have 
thdrawn. whereas you went on and had all the benefit of the trial." The cases of 
T. T%e Justices of Cheshire (8 Ad. & £11. 398), and Brunskill v. Giles (9 Bing. 13; 2 M. 
Scott, 41), are also authorities for the same position. In the former case, which 
a an appeal against an order of removal, the Court held, that as the respondents had 



110 MAGISTRATES* CASES. 

asked the Sessions to confirm the order, it did not lie in their mouth to say tiiat the 
Sessions had no jurisdiction ; Lord Denman, C.J., sapng, " Had they withdrawn upos 
the notice being declared bad, they might perhaps have more consistently contended^ 
that the magistrates were without jurisdiction." The latter decides that a challenge 
to the array must be formally tendered before the jury is swem, otherwise it is waiTiod. 
Besides, according to the words of the drd sect, of tlie stat. 2 & 3 Vict. c. 85, die 
entering into a recognizance is a condition precedent to the right to go to the Quarter 
Sessions. That section provides that if the party charged shall declare that he it J 
desirous that the charge shall be heard at the Quarter Sessions, " and shall then ami i 
there enter into a recognizance, with two sufficient sureties, conditioned persontl^l 
to appear, &c., then the justices in Special or Petty Session shall not proc^d fiirdMr 
to hear the charge, but shall take such recognizance, and transmit it to the deik df 
the peace, &c.;'* but here no recognizance was entered into, and the latter part cf 
the section, therefore, did not apply. If the justices refuse to accept the recognizaaee^ 
the proper course would be to apply to this Ck)urt for a mandamus to compel tiiea. 
In this case, however, the justices were right in refusing ; for the hearing of the caie 
had commenced on the 7th of December; and on the 4th January Bellett's applica- 
tion t-o have the case heard at the Quarter Sessions was too late. (Rex v. Oxley md 
Another, ante, p. 95). 

Carrow, in support of the rule.—- The cases cited on the other side are not applicable 
to this case ; they all relate to irregularities, not affecting the jurisdiction of the Court; 
but here it is a question of jurisdiction, and the principle is well established that OQi*|| 
sent will not cure the want of jurisdiction. Lawrence v. Wilcock (11 Ad. & EIL 941), -^ 
and Lismore v. Beadle (1 Dowl. N.S. 566), are authorities for that position. Tb^ t 
were cases under the Writ of Trial Act ; in the former the case was held not to tie. J. 
triable before the sheriff, and the Court set aside the writ of trial and all subsequoi: ^ 
proceedings, although the defendant had assented to the judge's order for sending 
case before the sheriff; in the latter, the verdict being found for the defendant, 
Court pursued the same course, at the instance of the plaintiff*, although the pi 
had procured the order for trying the cause before the sheriff'. In the present caie, 
is submitted that the justices had no jurisdiction to hear the charge after the appliea^';-] 
tion made to them by Bellett to receive his recognizance. That applicatioQ was ' 
time ; it could not be made before the notice had been proved ; and the admianon 
the service of the notice made on the 7th December only removed the necessity fai 
that proof ; which has been decided by this Court to be no such hearing of the appfif 
cation as would entitle the party charged to his costs under sect. 73 of 4 & 5 Wm. ft; 
c. 76. Reg. v. The Justices of Norfolk, (a). Then the application by Bellett wa»' 

(a) The Queen v. The Justices qf Norfolk. In costs and charges {ncurred by the penoo, to k^ 
last Trinity Term (Junes), Erie, Qt.C, shewed caose tended to be charged, in resisting sndi appMcitli^ 
against a rule nisi for a mandamus commanding cer- shall be paid by such overseers or — — ««-^'« 



tain justices of Norfolk to make an order for the The same section also enacts that " nonsuch u|l* 

payment to one Shepherd of the costs incurred by cation shall be heard at such Sessions, unless M* 

him in resisting an application made at the Petty teen days* notice has been given." Tbe notiNp 

Sessions by the guardians of the Aylsham Union for therefore, is a condition precedent to the hearii|i' 

an order upon him to reimburse the said union tbe but in this case tbe party himself pteve&ted W 

costs and charges of maintaining and supporting a hearing. 

bastard child, of which he was charged with being Gunning, contra, cited R. ▼. CoUingkam (4 Nml 

the puUtive father. At tbe Hetty Sessions a pre- & M. 215), Reg. v. Stamper (1 O. B. 119, 4 Per.f 

liminary objection was taken on the part of Shep. D. 539), and Reg. v. The Recorder qf Sxeier (3 ^ ' 

herd, that one of the guardians who had signed the & Dav. 167), to shew that there was such a ' 

notice was not competent to prove his own signature ; of the application as entitled the party ' 

and upon that objection tbe application was dis- be charged to his costs, 
missed, and the following entry made by the clerk : Sed per Curiam.— A party who has 

"The case was not heard, because Mr. Shepherd prevented the hearing of the applicatioii, 

objected that the notice was not proved.*' The come here for costs ; be cannot be allowted tonyia' 

provisions in sect. 73 of 4 & 5 Will. 4, c. 76, apply to the Sessions, *' you cannot hear the cbaige,** mA 

the proceedings at Petty or Special Sessions, under afterwards come to this Court and say, ** tMclM|i ' 

' ' -— • . , , , . Ittod •» 




2 & 3 Vict. c. 85, except that the length of tbe has been heard, and I therefore 

notice is altered; and that section provides, that costs.** The cases cited are dUtinguishaUe. la Jay. 



** if, upon the hearing of such application, tbe v. Stamper, there was no objection to the ! 
Court shall not think fit to make any order and in Reg. v. The Recorder qf Sreier, tbe 
thereon, it shall order and direct that the full tion was to the parties who had given the ootice.-^B* 



SITTINGS AFTER TRINITY TERM, 1844. Ill 

de at the proper time; and the jurisdiction of the justices was immediately at 

end. 

joan Dbnman, C.J.— Whether the justices were right or wrong in refusing to 

ept the recognizance, and transmit the charge to the Quarter Sessions, it is quite 

ir that BeUett is not now in a situation to contend that the order in question was 

ie without jurisdiction. The justices may have done wrong in refusing to accept 

recognizance and to send the case to the Quarter Sessions, but immediately after 

t decision he should have withdrawn ; by remaining and cross-examining the wit- 

KS, and taking the chance of a decision in his favour, he has waived any right 

: he might have had to except to the jurisdiction of the justices at the Petty Ses-^ 

iS.. 

^▲TTESON, J. concurred. 

k>LKRiD6B, J. — ^This case is distinguishable from those cited in support of the rule, 

the circumstance that at the commencement of the proceedings the justices had 

sdiction. 

Rule discharged. 



Tub Qubbn v. Thb Inhabitants of Mebionbthshibe. 

t pnvUionM of 13 Geo. 3, c, 78 are repealed by the b Sf 6 Wm. 4, c, 50, $. 1, only at regarde- 
^ifkwaye ; at regarde county bridgee they remain etill in force by the operation qf the 43 Geo, 3». 
r. 59, in which they are incorporated by relation, 

LRULE having been obtained, calling on the prosecutor of an indictment for the 
non-repair of a county bridge, situate in the parish of Mullwyd, in the County 
Merioneth, to shew cause why the certificate of Mr. Baron Grumey (before whom 
e indictment was tried at the Summer Assizes, 1843), that the defence to the said* 
fictment was frivolous, and that the defendants should pay costs to the prosecutor, 
(ether with the side-bar rule thereon, should not be set aside, 

Witisby now shewed cause. — ^The question here is whether the 13 Geo. 3, c. 78, is^ 
peakd for all purposes by the last General Highway Act (5 & 6 Wm. 4, c. 50) ; or 
bether it is kept alive as to county bridges by the stat. 43 Geo. 3, c. 59. The 13 
». 3, c. 78, applied only to highways ; and by s. 64 empowered the Court, before 
iom an indictment for the non-repair of a highway was tried, to award costs to the 
oeecutor ; but that Act is expressly repealed by the 5 & 6 Wm. 4, c. 50. The 
Geo. 3, c. 59, is not however repealed by that statute ; and the 1st section provides- 
it " the powers and authorities %'ested by the 13 Geo. 3, c. 78, in the Surveyors of 
^ways, shall be vested in the Surveyors of County Bridges, and the several penalties,' 
feitnres, matters, and things in the said Act contained relating to highways shall be- 
ended and applied to such bridges as fully and effectually as if the same were therein 
wted and re-enacted" The power of awarding costs to the prosecutor is, therefore, 
Duch tmtouched as if it had been repeated in words in the 43 Geo. 3, instead of beings 
f incorporated by relation. Reg, v. Pembridge (3 Q.B. 901), was referred to. 
79d9on and Hodges in support of the rule. — This certificate was in fact applied for 
I granted under the 9Cth sect, of 5 & 6 Wm. 4, c. 50 ; but it cannot be supported' 
ler under that statute or under 43 Geo. 3, c. 59 ; for as to the former statute, 
Mmgh the 98th sect, provides that the Court may give costs to the prosecutor of an 
ietment for the non-repair of a highway in every case in which there is a frivolous 
nee, yet the interpretation clause (s.5) expressly enacts that the word " highways"* 
n mean all bridges, " not being county bridges,'* As to the latter statute, it gives- 
iie justices in Quarter Sessions certain powers for the purpose of widening and 
myving county bridges; and then it extends to such bridges the provisions of 13» 
>• 3p c. 78 ; but that latter statute is expressly repealed by the 5 & 6 Wm. 4, c.50,. 
, and the mere reference to it in another statute cannot render that repealing- 
ne inoperative. 



lis MAGISTRATES' CASES. 

Lord Denman, C.J. — I confess that I feel considerable difficulty in d^iding upo 
the effect of the repealing clause of the ok 6 Wm. 4, c. 50, as to the power of grani 
rig this certificate. It is quite clear that under that statute there is no such pow( 
(although the learned judge seems to have acted under it), for the interpretation claiu 
expressly excludes county bridges; but then the question arises upon the 13 Geo. i 
c. 78, s. 64, and the 43 Geo. 3, c. 59. By the former of these statutes power is give 
to the Court, before whom any indictment for the non-repair of a highway is tried, i 
give costs to the prosecutor, when the defence shall appear to be frivolous ; and by tl 
latter, that provision is extended to county bridges in these words : " Thex seva 
penalties, forfeitures, matters, and things in the said Act contained relating to higi 
ways, shall be extended and applied to such bridges as fully and effectually as if tl 
same were therein repeated and re-enacted." The difficul^ is, that the 18 Geo, 
c. 78, has been since expressly repealed by the General Highway Act ; but upon tl 
whole I am inclined to think that that repeal is confined to its relation to highm 
The words of the 43 Geo. 3 are very strong ; the intention of the legislature on 
not have been more clearly expressed if the words of the 13 Geo. 3, c. 78, s. 64, ni 
been copied into it ; and supposing that had been done, tliis question could not hs 
arisen ; for the unrepealed statute would, then have conveyed the power to grant tl 
certificate in express terms. Then, I think, there can be no doubt that these coi 
come within the terms used—" penalties, forfeitures, matters, and things ;" and up( 
the whole, therefore, the result of my opinion is, that the provisions of the 13 Geo. 
c. 78, are kept alive, as to county bridges, by the 43 Geo. 3, c. 59, notwithstandii 
the repealing clause of 5 & 6 Wm. 4, c. 50 ; and that, consequently, the learned joc^ 
had power to grant the certificate in question. 

Patteson, J. — This question is not without considerable difficulty ; but, upon d 
whole, it seems to me, that the 43 Geo. 3, c. 59, must be read as if all the provisions • 
13 Geo. 3, c. 78, had been repeated in it ; and if that had been in fact done, thfl 
could have been no difficulty ; because then, upon the face of the 43 Geo. 3, c 51 
this power of awarding costs to the prosecutor would have appeared ; and the 43 Oo 
3, c. 59, is not repealed by any subsequent enactment. 

Williams, J. — ^This question is certainly not free from doubt, on account < 
the apparent inconsistency of deciding that an Act of Parliament which is itself i 
terms, repealed, must still take effect by the operation of another Act ; but surely, i 
order to extend this provision to county bridges, it could not be necessary to repeat: 
in the 43 Geo. 3 ; the same thing was, in effect, done by referring to the previon 
statute, and so, by relation, incorporating its provisions in the latter statute ; the foi 
mer, by tiiat means, became a part of the latter statute, and the latter statute beio 
unrepealed, so is every part of it. 

CoLEBioGE, J. — The more I consider this question, the more satisfied am I that thi 
decision is correct. Before the passing of the last General Highway Act, there is o 
doubt that the power to grant this certificate existed ; then what is tlie effect of thf 
statute? It repeals the 13 Geo. 3, c. 78; but it leaves untouched the 43 Geo. 3,( 
59 — all and every part of it. Was the provision in question a part of it ? That is tb 
real question ; and upon reading the words of the 43 Geo. 3, c. 59, I can put no otitf 
construction upon them but this — that that statute must be read as if the 13 Geo. d,( 
78, had been bodily inserted in it. If so, the learned judge had power to grant tfa 
certificate, and this rule must be discharged. 

Rule dischargd. 



BQCHAELMiOl TERM, ISM. 118 



Michaelmas Term, 1844. 

Q.B. Saturday, Novemher 2. 
Thb Qubbn v. Thb Archdeacon of Covbktbt. 

it Otmri wSi grmU a mle aUohUe tn the first huftanee to eompBltm arehdeaean iomoear 4n ekmreh^ 
Mniciu, ike dufy being merely mmieierial; but a peremptory mandamue will not be grantedf/br 
fke pmij f wtemeit^aimet mmet be emabied to ittake a return. 

WELLOR moved for a peremptoiy mandam^us to compel the Venerable and Reverend 
WOKam Spooner to swear in and admit to their offices Messrs. Sntton and 
Ksbaw, as chorchwardens for the township of Thurlaston, in the parish of Dunchorch, 
tlie county of Warwick. 

The affidavits riiewed likat the parish of Dcmdiurdi is divided into one township, 
kTliiulMton; and two hamlets, viz. Canston and Toft : that ^mtime immemorial, 
ope luKve been appointed four diurcfawardens for the said parish of Dunchurch, two 
whom have beein chosen by the inhabitants of Canston and Toft, and the two other 
(■chwardoDS by the inhabitants of Thmrlaston, which had always laid separate and 
gtioct rates for the reliflf of the poor and for the repair of byways ; and " has 
weBf% also kid separate and distinct rates for the repair of the chur^ of the said 
nil of Dundimrch, in the p roport i on which one-third bears to the whole expense of 
A repairs :" that for seventy years, the churchwardens chosen by the inhabitants 
f Ttailattoii Iwfe been awom m by tiie Archdeacon of the Archdeaconry fd Coventiy, 
miAunX doubt or question :" that ti» chvrchwaxdens so elected for the present 
m presentad themsielves at the visitation of the said archdeacon, when he whdly 
ined to sw«ar and admit them to their office, '* on the fpround that he did not oon- 
Hv tliese deponents to have been duly etoted." 

k also appeuied by the affidavits, that the said ohurohwardens were elected by the 
ilibitants in vestry, at a meeting, of which the foUowing notice was duly affixed, pre- 
hHly to the eomnencement of divine service, on the door of the parish church, on 
b ^ day «f Aprd last, being three days at the leatft before the day appcnnted for 
aiiii^ the viestry meeting therein mentioned, which nolioe was as follows : — 

** Notne is hereby given, that the meeting for the appointing chu r diw a r d ens 
far the parish of Dmichurch will be holden at the vestry in Dunchurch, on 
Thursday, the llthday of April, inst., at 11 o'dock in the forenoon; andtlreinha- 
bituits 61 lliuiiaston are hereby requested to attend tke said meeting, to appoint 
two isi the said churchwardens, according to custom, to act for ^ division, 
distitet, or hamlet of Thurkston, in the said parish of Dunchurch, Dated this 
€th day of April, 1844. 

" William iBARirwBLL, *l Over se ers for the township 
"Ann Barnwxll, j ofThurtaston." 

IfdZor contended that the office of archdeacon was purely ministerial, and that he 
nU have no power to defeat the election of the vestry. 

Loan Dbvmait, C. J.— Has the ardideeeoB assigned any reason for his refusal ? 
Ifilfer.— None whatever, except that the churchwardens are not duly elected, into 
Weh question I submit that it is not within the jurisdiction of his office to enter, and 
i tUs groond I move for a peremptoiy mandamus. 

Loan DufMAN, C. J. — You cannot have a peremptory writ. The ardideacon must 
Me the power dP making a return ; but the rule may be absolute for a mamdamnts in 
m unit moioBoe* 

Biidtaccarimah, 



Q.B. Saturday, November 9. 
Thb Qubbk v. Charles A. H. H. £lli8« Esq. 

Where a eoxmiy lunatic aeylum iejull, a lunatic pauper in hat county emmot on ikai ceeNif It 
tent to a lieemed houee, or other asylum in another county, under the 38 sect, of 9 Geo, 4, e. 40,. 

ON appeal by the parish of St. Luke's against an order for the conveying Harriet 
Ellis, an insane pauper, to a house licensed for the reception of insane penoos 
in the county of Surrey, the order was quashed, subject to the opinion of the Court of 
Queen's Bench, on the following 

CASE. 

" At the time when the orders in question were applied for, and made, there wu ft 
County Lunatic Asylum at Hanwell, in and for the county of Middlesex, which asylim 
then contained upwards of 900 patients, and. was then quite full. When that asyhnft 
was first completed imder 9 Oeo. 4, c. 40, it was capable of containing 300 patientB 
only. It was afterwards enlarged and altered from time to time, till it became capaUe 
of containing upwards of 900 patients : but it was proved before the trustees who made 
the order appealed against, ihat there was no room or accommodation for the wd 
Harriet Ellis in the said County Lunatic Asylum when the said orders were made* 
The above facts were admitted on both sides, when the appeal came on to be heiiil- 
The appellants insisted that since, in fact, there was a county lunatic asyliim nn 
Middlesex, the justices had no jurisdiction under 9 Geo. 4, c. 40, s. 38, to direct radu 
insane pauper's removal to a house duly licensed for the reception of insane panpen s 
and that, at any rate, the justices had no jurisdiction to remove the pauper to m koum^ 
out of the county of Middlesex ; within which county there were many houses duly 
licensed for the reception of insane persons, and to which the pauper might have bees& 
sent." 

Prendergast, in support of the order of Sessions. — ^The Sessions did right in qnanhing 
the order of removd. The 9 Geo. 4, c. 40, having made ample provision for tlB.0 
erection of county lunatic asylums, and having provided for the association of adjaoeci.^ 
counties for the same purpose, proceeds in the 38th section to enact, that insane pttx.— ' 
pers may be brought before any two justices for the county in which they may ha:^^ 
become chargeable, and upon due evidence of the pauper's insanity and place of setdc" 
ment, " that it shall be lawful for them, if they shedl so think fit, by an order unde^ 
their hands and seab directed to the said overseer of the poor, according to the form is* 
the schedule annexed to this Act, to cause the said poor person to be conveyed to, sia^ 
placed in, the county lunatic asylum, established under the direction of this or any formes' 
Act, for the county or district of united counties for which, or any of which, they shall 
act; and if no such county lunatic asylum shall have been established, then to soniC 
public hospital, or some house duly licensed for the reception of insane persons." I0 
this case a public county asylum has been established in Middlesex, where the panpef 
became chargeable ; and therefore, by the express terms of the Act, the justices oooU 
have no power to remove her to a private asylum in the county of Surrey. The Act; 
under no circumstances, empowers removal to any private house, and only to 
a public hospital, or some house duly licensed, in case there be no public aaylom 
in the county where the pauper becomes chargeable. It is argued in behalf d 
the order of remo\^, that there was no room in the county asylum, and thit 
no room is tantamount to no asylum. But Acts of Parliament must be strict 
construed. We cannot extend powers expressly defined. The answer to the argu- 
ment is, that the statute has not provided for this case, and that it cannot be 
strained to cover to it. [Coleridge, J. — Is the keeper of a private house at all 
bound to receive insane paupers thus sent?] The latter part of section 38 of the Act 
provides, that a justice's order must be given for the payment to the keeper of a licensed 
bouse of such reasonable sum " as he shall be willing to accept." It may be that 



MICHAELMAS T£RM» ISU. 115 

the equity of the statute may extend to a case like this ; it may be very expedient that 
tuch a case should &11 within the pale of its provisions ; but the Court will literally 
adhere to its express terms, and, as in former cases, abide by the words of the statute, 
which, being particular, cannot be extended by construction. {The King v. The Inhabit- 
miti of Chagford, 4 B. & Ad. 235.) (a) But if the legislature has made no provision 
in this case, there are abundant means for providing for these paupers in workhouses. 
The pauper belongs to a parish of Middlesex ; the order of maintenance is made on a 
pirish of Middlesex, yet Uie pauper is sent to Surrey. The 39th section provides that 
lintors may deliver insane paupers to their friends when application is made to them, 
which might have been done in this case. 

Bodkin, contrk. — ^This is a matter within the discretion of the justices. It is incon- 
Sftent with the Act to argue against sending the pauper into another county. The cir- 
comstances require that the paupers should be brought under the Act, if possible, which 
18 to provide for their proper care. The 44th section provides expressly for taking care 
cf persons wandering about, who are insane, and who are to be summarily dealt with. 
The whole tendency of legislation on the subject is to prevent danger to the individual 
and to society from lunatic paupers being houseless and untended. The 4th and 5th 
sections of 4 & 5 Wm. 4, c. 76, expressly forbid the detention of dangerous lunatics in 
irorkhouses, so that they form no sufficient refuge. The whole question is, what is the 
dntjr of the magistrates ? Have they not a discretion in the matter } If so, it is impos- 
flUe to put a rigid construction. According to the very letter of the Act, the words 
"ahall have been established" must be taken to mean established so as to be capable 
of recdving " inmates." In this case the county asylum was so full as to be inca- 
pible of receiving this pauper. Is the Act, therefore, to be rendered nugatory? 
[CoLSRinGE, J. — ^Where there is no county asylum, where are they sent then ?] To 
any private licensed house. [Colbridgb, J. — Suppose it won't receive them ?] Their 
iriUingness is first ascertained. 

Poihley, on the same side. — The King v. Chagford is not applicable. It is disposed 
of by the remark of Holroyd, J., who there says — " The statute cannot be con- 
itrued to apply to that case, though probably the legislature would, if it had occurred to 
them, have provided for it. The words used, however, are too express to include the 
piesent case." In this case they are different, and do not require that strict construction 
which obtains in the interpretation of penal statutes. {Doe dem, Richardson v. 
Thmag, 9 Ad. & Ell., per Lord Denman, C. J., 572, and Coleridge, J., 575 ; Henderson 
▼. Sherborne, 2 M. & W. 239, per Lord Abinger, C.B.) In Edmonds v. Lawley (6 
M. & W. 289), Mr. Baron Parke lays it down that " the sound rule of construction 
^th respect to Acts of Parliament is, that the words are to be read in their ordinary 
^ usual grammatical sense, unless that mode of construction leads to manifest incon- 
^ence, or is repugnant to the plain intention of the legislature." (5) Now the pre- 
amble and title of this Act shew that it is designed expressly for the more effectual 
cire of pauper lunatics ; and sections 41 and 38 both provide measures for immediately 
booaing them. It is, therefore, grossly inconsistent with, and repugnant to, the inten- 
tbn of this Act, so to construe its provisions as to deprive lunatic paupers of all place 
of refuge and confinement, when the statute so plainly intends to provide for them in 
lome way or other. Supposing an earthquake were to swallow a county asylum, are 
all lunatic paupers to be turned adrift ? lliat construction can alone be put on a statute 
which is most consonant with reason and equity. (Plowd. 363, and see 3 Bac. Ab. 
^1, and 1 Inst. 97.) (c) 

(a) ThU case decided that the irremovahility of found in the recent case of Smiih v. Bell (10 M. & 
t pauper, under a suspended order, consfqnent on W. 378, and 2 Railway Cases, 877), in which it was 
aa estate descending to him, was not within the held, with respect to a Railway Act, that statutes 
pale of the Act 35 Geo. 3, c. 101, s. 2, empowering are to be construed according to their strict gram- 
payment of expenses during suspension of orders matical construction; that a proviso, not on the face 
of removal, which is confined to two cases only — of it inconsistent with the rest of the statute, is 
the removal of the pauper, or his death ; and that not to be limited in its effect by that which does not 
cxpedieDey was no ground for straining the statute, appear on the face of the statute, arising from pe- 

{b) These cases turned on points totally inapplicable culiar local circumstances ; and that if the Act, in 

to the statute in question ; they were cited merely consequence of local peculiarities, becomes inca- 

§oe the general rules laid down in the judgments for pable of being carried into effect, it is reasonable 



tike eonstruetSon of statutes. Tike King v. Hall (1 that the petitioners for it should suffer by their de 
B. St Cr. S37) was alto dted. fault, rather than they for whose benefit ' 

(e) A very elaborate judgment on this rule will be pressly provided should be saved harmless. 



11« HAOSmULTES* CA8E& 

Lord DsRicAir, C.J.— Hie aessioiu bave done quite right in qnadung flni ordBr. 
This is a case for which it is dear that the legislature has made no provinon. Wen 
we to give the construction, and import the addition into this statute, which it is 
required of us to do, we should in effect be making a new Act of Ftaliament. SeedoK 
86 empowers two justices to order the removal of the pauper to the county Inintie 
asylum, where one shall have been estabHshed, and only in case none shall haTe bees 
establiriied, then to some other asylum. Here a county lunatic asylum has been cslib* 
lished, and there is no likelihood that, where a county asylum is once established, it 
will ever cease to exist. In this case there is no authority in the statute to renove 
pauper lunatics elsewhere, and the order of Sessions must be confirmed. 

Williams, J. — ^The argument falls short in convincing me that we can npbdld tiis 
order of the justices. The more plainly it is made to appear that the legislature nrail 
have had these cases in their mind, the more is it to be assumed that they did not 
intend to provide for them. It is said that the asylum, being full, is practicdly the 
same thing as no asylum ; but for this case the Act has not provided, and we oamiik 
vcq>ply tiiat which it has not provided for. 

GoLBRiDGB, J. — The object of the statute is to provide for tiie proper rtcep6xMid , 
lunatic paupers ; it provides a new mode of getting rid of tiiat miserable parodual cm 
which had previously formed the chief resource. They are all to be sent to the proper 
place — the county asylum — and only where there is none, to a private or other asylui ; 
this is the uniform practice, and it must be regarded as an inflexible rule thiA the 
justices are bound by the strict condition imposed by the Act, that only where tiiere ii 
no asylum, can the pauper be sent elsewhere. Here there was one. The order 
therefore, be confirmed. 

Wig HTM AN, J., concurred. 

Order of Sessions confirmed, quashing tike order o/rmnopd. 
J. C. 8. 



B. C. Wednesday, November 13 

(BeSore Mr. Jvsncx Pattbson.) 
Ex parte Jobk Gbat. 

A warrant qf eommiiment under the 6 Oeo, 3, e. 25, or 4 Gte. 
wmtt AeU), i$ mrtndOp a eoHvietion, and should be eonatrued oi 
a warrant §et ont the facte qf the drfendant hading heen brought 
9fe.f hut emUamed no allega^an that the evidence apamet him 
imd, and theprieoner wae ordered to be diaeherged, 

QfemrOf whether in each a warrant it i» n^eeaarjf to set out the eeidenee / 




A RULE luft for a habeas corpue having been obtained for tlie diachacge of Ae 
defendant out of the custody of the Imper of the House of Gomctian at SsU 
fixrd, in the county of Lancaster, a return was made by the gaoler settiiig forth tbrt 
he detained the deftmdant by virtue of the fi)llowing warrant of oommitnient : — 

r To the constables of Aspull, in the said county, and to 
" County of Lancaster./ the keeper of the House of Correction at Salfbrd, in tts 

Lsaid county, and each of them. 
" Whereas information and complaint have this day been made unto »e, tte 
Honourable Colin linsay, one of her Majesty's justices of the peace m and for ths 
said county, and residing witiiin the same county, by John Johnson, of AxpdSL in 
the said county, coal-master, upon the oath of the said John Jofanaon, tiiat Jdfai 
Gray, of AspuU, in the said county, collier, did contract with the aaid John Johnaon 
to serve him as a collier at his woiks, in AspuU afiireaaid, for the tenn of twdve 
months, firom the 21st day of September last, and £d afterwards, to wit, on tlie SSad 
day of September last, enter into the said service, and did aAorwirda, to wit, on tiha 
2nd day of October, A.D. 1844, absent lumsdf firom his said aonm Mm tlw 



MICHAELMAS TERM, IBM. 117 

: Mb aud contract was completed, contrary to the form of the statnte in that case 
ade and provided. And whereas in pursuance of the statute in that case made and 
wided, the said John Oray was, on tins 1 1th day of October, at Wigan, in the said 
vnnty, duly brought before me to answer the said complaint, and I, the said justice, 
ily Uiereupon, then and there, in the presence as well of the said John Johnson as 
; the said John Gray, examine and inquire into the proofs and allegations of the said 
irties, touching the matter of the said complaint, and upon due consideration had 
lereof, I have adjudged and determined that the said John Gray did contract with 
le said John Johi^n to serve him as a collier, for the said term of twelve months, 
ad did afterwards before the term of his said contract was completed, to wit, on the 
dd 2nd day of October, in the year aforesaid, unlawfully absent himself ^m his 
nd service, contrary to the form of the statute in that case made ; and I do thereupon 
onvict him, the said John Gray, of the offence and misdemeanor aforesaid. These 
re therefore to command you, the said constables, forthwith to convey the said John 
hay to the said House of Correction, at Salford aforesaid, and to deliver him to the 
aeeper thereof, together with this warrant ; and you the said keeper to receive the 
ud John Gray into your custody, in the said House of Correction, and him there 
•idy to keep for the space of three months from the date hereof, and for your so 
loing this shall be your sufficient warrant. 

" Given under my hand and seal, the 1 1th day of October, A J). 1844. 

(Signed) "Colin Linsay." (Seal.) 

Bodkin and Huddlegtone now moved, upon reading the return, that the prisoner 
ifaoald be discharged. — ^This is a conviction under the Masters and Servants Act, 
4 Geo. 4, c. 34, s. 3, and in Re Tordoff {13 L. J. M. C. 145), it was held that these 
vurants are also convictions. In that case Lord Denman sa3rs — " It has been urged 
ftat this is a mere warrant of commitment, which would be good if founded upon a 
good conviction, and that a good conviction must be presumed ; but we cannot yield 
to that argument. The answer is, that this is a conviction, for all the necessary words 
to constitute a conviction appear." Here a warrant of conviction has been returned, 
and the question is, whether it is not bad upon its foce ? There are a great number of 
oljections to this warrant, one of which is, that it does not appear tbat any evidence 
^18 taken upon oath, for althoiigh it states that a complaint was made upon oath, it 
does not shew that any witnesses were sworn, or indeed any vivd voce evidence taken 
If the magistrate. [Patteson, J. — The return is very imgrammatical, and it does not 
9pear that any witnesses were examined at all, much less in the presence of the 
I*aooer, who has a right to cross-examine.] Paley, in his work on convictions, says» 
Alt all convictions must be founded upon oath, and all general expressions upon 
tte subject must have reference to the only legal method of convicting, namely, by 
pith. This point was before the Court in The Queen v. Lewis (13 L. J. M. C. 46), 
ft vbich Mr. Justice Williams held the conviction to be bad for this defect, and the 
two cases appear not to be distinguishable. 

Pattbson, J., called cm 

Cowing, in support of the warrant of commitment. — The case of The Queen v. Lewis 
i not good law. This conviction is founded on the 6 Geo. 3, c. 25, s. 4, and is 
Kferred to at the foot of the printed forms of the warrant. The real question is, what 
• ^ nature of this document ? It is not strictly a conviction. A conviction requires 
he evidence to be set out on its foce, which an order does not. This warrant, there* 
9fe, partakes more of the nature of an order than a conviction. [Pattbson, J. — Sup- 
ose it is an order, are magistrates to convict a man without examining witnesses in 
b presence ?] I can shew that the evidence was taken in the presence of the prisoner, 
Bt I contend that it is not necessary to do so, as this document is an order, and should 
s amatmed as such, and therefore need not set out the evidence. [Pattsson, J. — 
■in not convinced even of that.] In commitments for vagrancy, the evidence is never 
t ant, and these forms are very ancient, and yet they are all bad if this objection is 
ril fimnded. Tlie Act of tiie 6 Geo. 3, c. 25, s. 4, does not constitute a crime 
It merely enforces a private arrangement ; sec. 5 of this Act describes the 
BTUit as an "older of commitment," and it is therefore an order and not a 
nrietioB; and if this be ao, it is withm many precedents. In Re» v. Bissey (Sayer, 



118 MAGISTRATES' CASES. 

304), it was held that a conviction under the 11 Geo. 2, c. 19, for fraudulently 
removing goods, was an order. So also in The King v. Cheshire (5 B. & Ad. 4^1). 
The question in construing these documents is, does it appear that the magistratB 
acted within his jurisdiction — has the misconduct complained of been committed- 
does it appear that the party was brought before the magistrate, and has the latter 
decided upon the complaint ? It is not necessary to shew how the evidence was given, 
it is quite enough that it appears that he examined into the case. {The King v. Stvf* 
fordshire, 12 East 572.) It is enough to shew in this warrant that the magistrate 
had jurisdiction, for it will be implied that he did his duty and took the evidence 
upon oath. (Johnson v. Reid, 6 M. & W. 124.) [Patteson, J. — ^There would have 
been no difficulty in saying that the witnesses have been examined upon oath.] h 
orders of removal, the statement of the evidence having been taken upon oath is never 
made upon the £eice of the order. If this objection is good, all orders of removal are 
bad. In Munger- Hunger, and Warden (Burn's Jus. tit. Poor), exception was taken 
to the order, for that it was said to be made upon due examination without saying 
upon oath. But by the Court — " This is sufficient ; for it is said to be made upon doe 
examination, it shall be understood to be upon oath." [Fattsson, J. — Aa order 
of removal is made on an ex parte proceeding and for the benefit of the pauper. 
The question here is, whether a party is to be deprived of his liberty on a 
very penal proceeding without its appearing that the evidence was taken upon 
oath ? What does it signify whether you call this commitment an order or a 
conviction } The effect is the same.] The distinction is, that in a conviction aU 
these matters must be set out, and in an order they need not be. If I am riglrf; 
in my argument, this commitment is good. In The Queen v. Lewis, this line of 
argument was not taken. [Patteson, J. — The last case is that of Tordoff, and I 
don't feel called upon to overrule the case unless you shew a distinction.] In Tor- 
dofFs case it did not appear that the prisoner was present at the examination of the 
witnesses, which is otherwise in this case. If the argument on the other side is cor* 
rect, the whole of the evidence must be set out, because some of the witnesses may have 
affirmed, or there may have been a confession. [Pattbson, J. — It is a very ingenioua 
distinction to take between an order and a conviction, but I think it is against commoa 
sense to say that when an Act of Parliament describes an offence, and gives justices a 
power to hear and determine it summarily, and gives them power to imprison a party, 
that they need not shew that they took the evidence upon which they acted upon oath. 
There is this distinction certainly between TordoflTs case and this one, that here the ex» 
aminations were taken in the presence of the prisoner. I will hear the other points.] 

IBodkin and Huddlestone then proceeded with their arguments on the other objections, 
and Cowling was heard in answer ; but as none of the objections formed a subject of the 
judgment, we omit them here.] 

Patteson, J. — I was very desirous of hearing this case argued out, as I wished to 
hear Mr. Cowling on one or two objections which particularly struck me, and he has 
satisfied me to a certain extent upon many which were of such a nature that I should 
not have liked to have determined them myself. The great question, however, is the 
first, and I confess I cannot bring my mind to believe that the justices proceeded upon 
the 6 Geo. 3, c. 25, and not upon the 4 Geo. 4, c. 34. It may be so, but I am not 
satisfied that it is so, because there is a distinct allegation in the other commitment 
that Blaney entered into the service ; and the adjudication sets forth that he, the said 
Hugh Blaney, did contract with the said John Johnson, and did enter, and afterwards 
absent himself, as in 4 Geo. 4, c. 34 ; but in the commitment of Gray, the adjudication 
is, that he contracted and absented himself, omitting the fact that he entered, as in the 
6 Geo. 3, c. 25, and I am satisfied that the non-statement of the entry was an omissi(»< 
I do not think that this signifies, only it is a little remarkable, and I don't think it is 
right or honest to fall back on the 6 Geo. 3, when they find that it is, from what subse- 
quently transpires, more convenient for them to do so. If the omission as to the ew/TJf 
is a mistake, let them say so ; but I don't like to be told that it was purposely done, and 
not by mistake. The principal question here is, whether or not it is necessary to say 
in the warrant of commitment that the witnesses were examined upon oath ? Now, 
looking at the two cases of Ex parte Tordoff and The Queen v. Lewis^ they eeem to n» 



MICHAELMAS TERM, 1844. 119 

D go the full length of shewing this conviction to be bad. I cannot agree that because 
a Act of Parliament states that a magistrate may do this, that, or the other, in general 
srms, a commitment of this sort is an order and not a conviction. If an Act of Par- 
ament says that magistrates shall have authority over a certain offence, a warrant 
:ating the facts of a complaint made, the examination of witnesses, and the adjudica- 
oa is. in effect, a conviction. The substance of the thing is a conviction. I am not 
et driven to the necessity of saying whether it is necessary in such a document to set 
at the evidence ; this question will no doubt be determined one day or other ; and it 
Dght to be determined ; but I am unwilling to take it upon myself so to do. The 
stum states [here his lordship read the first part of the return] — it then states, "1, the 
lid justice, duly thereupon, then and there, in the presence as well of the said John 
dinson as of the said John Gray, examine and inquire" (in the present, instead of the 
B8t tense), '* into the proofs and allegations of the said parties touching the matter of 
lie said complaint, and upon due consideration had thereof, and have adjudged and 
letermined, &c." Now what am I to infer from that ? Am I to infer that parties were 
tDed and examined upon oath ? The allegation of " examine " may mean a variety 
I things, but if proof means proof upon oath, it is different. It may, however, mean 
bat the magistrate read over the complaint to the party. It ought, therefore, to 
fpear on the face of the document that tiiere had been witnesses examined upon oath 
k the presence of the parties. In TordofTs case, it did not appear that the examina- 
doQ was in the presence of the prisoner ; in Lewis's case it was not stated that it was 
tdcen upon oath. Putting, therefore, those two cases together, I must consider the 
conviction under this Act as I would any other conviction, and that it must appear 
kth that the examination took place in the presence of the party, and that it was taken 

noath ; and it not appearing that it was so taken, the party must be discharged. I 
it right to mention that I have stated my views to the other judges, and that 
tkey concur with me. 

Rtde absolute for the habeas corpus, 
I. w, s» 

V The reports to which are affixed the initials, '*T. W. S./' are contriliuted by Thomai W. Sannderfy 
Etq., of the Middle Temple, Barrister-at-law. 



Ex parte Blaney. 

THIS was a similar case, and it was arranged that it should depend upon the result 
of the foregoing one. 
With a view to avoiding expense, it was understood between the parties interested 
in tibe case, that the prisoners should be discharged if the Court should make the rule 
ibiolate for a habeas corpus, without the necessity of their being brought up. 
T. w. S. 



Q.B. Wednesday, November 13. 
Thb Qubbn v. The Inhabitants op Skipton. 

M 9rder qfjuiiieet made under 9 Geo. 4, c. 40, «. 38, adjudging a pauper to be ineane, and also adjudi- 
eating as to hie aettlement, ought to state that it is made *' upon view and examination qf the said poor 
ptrwon,'* or upon ** other proqf*' {which should be specified), A mere statement that it ** appears to 

ar, two, ifc.f having called to our assistance one , a surgeon, that — ft insane," is not enough, 

eUiougk thai is the form qfthe warrant given in the schedule to the Act; and therrfore, an order 
ta the above form having been appealed against and confirmed, this Court made absolute a rule for 
ptaskmg the order of Sessions, both orders having been removed by certiorari, 

Smble, that on appeal against orders made under 38 4* 42 u, qfthe above statute, the appellant does 
enough tf he serves the Clerk of the Peace for the county with notice, although the justices are 
entiBred as respondents in the appeal. 

fWALL, in a former Term, obtained a rule to shew cause why an order of the CJourt 
of Quarter Sessions for the city of York, confirming an order of two justices 
i^udging the settlement of one James Gill Scowby, an alleged lunatic, to be at the 
tovnship of Skipton, in the West Riding of the county of York, should not be quashed ; 
both the said orders having been returned into this court by writ of certiorari. 



laO MAGISTRATES* CASES. 

The order of the two justices was in the following form : 

"City of York, 1 To the Churchwardens and Overseers of the poor of the township 
to wit. / of Skipton, in the West Riding of Yorkshire. 

"Whereas it appears to us, two of her Majesty'sjusticesof the peace for the saiddty, 
having called to our assistance William Marshall, a surgeon, that James Gill Scowby^ 
chargeahle to the parish of St. Dennis, in the said city, is insane : And whereas by t 
warrant under our hands and seals hearing date this day, and directed to the overseers of 
the poor of the said parish of St. Dennis, we have directed them, the said overseers, to 
cause the said James Gill Scowby to be conveyed to the house of William MatterBoo, 
the younger, and Thomas Kilvington Lamb Walker, situate at Heworth, in the coun^ j 
of York, the said house being a house duly licensed for the reception of insane persona: j 
And whereas by the examination upon oath of Francis Scowby taken before us, irt ] 
£nd and adjudge that the place of the last legal settlement of the said James GiU \ 
Scowby is at the said township of Skipton. We do, therefore, hereby order you, the j 
said churchwardens and overseers of the poor of the said township of Skipton, to pay tp , 
the said churchwardens and overseers of the poor of the parish St. Dennis the sum of ~ 
one pound ten shillings, being the reasonable charges of conveying the said James GiO 
Scowby to the said licensed house ; and also to pay to the said William Mattersoo. 
the younger, and Thomas Kilvington Lamb Walker, the keepers of the said licensed 
house, the weekly sum of eight shillings and sixpence, for the maintenance, medicine^ 
clothing, and care of the said James Gill Scowby, during such time as the said J. G. 
Scowby shall be confined in the said licensed house. Given under our hands and sells 
this seventeenth day of October, one thousand eight hundred and forty-two. 

" John Swann. (L. S.) 
"Joseph Buckle. (L.S.) " 

The order of the Court of Quarter Sessions (omitting the formal matter) set fortii 
that at the Epiphany Quarter Sessions for the city of York, 1843, the churchwardeni 
and overseers of the poor of the township of Skipton entered an appeal against an order 
under the hands and seals of John Swann and Joseph Buckle, Esqrs., two &c., bearing : 
date the 17th day of October, whereby the said justices did adjudge &c. (setting out 
the adjudication) ; that the hearing of the said appeal was respited until the next Quarter 
Sessions, when the said appeal came on to be heard ; and that after hearing evidence 
and the arguments of counsel on both sides, it was ordered and adjudged by that 
Court, that the said order be confirmed, and the same was confirmed accordingly (a) '- 

At the trial of the appeal, the following objection (amongst others) was taken to the 
order of justices : That the order was bad upon the face of it, inasmuch as professing 
to be made under the provisions of the 38th section of 9 Geo. 4, c. 40, it did not pur- 
sue them ; for that it did not appear by the order that the justices making it were 
satisfied, upon " view and examination " of the said James Gill Scowby, ** or fron 
other proof," that he was insane. Many objections to the order of Quarter SessioM 
were also included in the points marked for argument. 

Notice of appeal and notice of trial were served upon the Clerk of the Peace, the 
justices, and the overseers of St. Dennis ; but, in the entry of the appeal, the justices 
appeared as the respondents. 

Bliss now shewed cause. — The objections taken in this case may be divided into two 
classes : first, those directed against the original order ; second, those which apply to 
the order of Quarter Sessions. [Williams. J. — Doesn't it all turn upon the validity 
of the order of justices ?] No ; in this case the Court is not at liberty to look at the 
order of justices, because in efifect there has been no appeal against it. The case 
stands thus : there is an order of justices, against which a bad appeal has been brought; 
the Court, therefore, can at all events go no further than to quash the order of Sessions. 
[Williams, J.^Does it appear upon the order of justices that they heard any 
proof at all ? And the 38th section of the statute 9 Geo. 4, c. 40, shews that 
they would have no jurisdiction without examination.] They might be satisfied by 
their own view. [Lord Denman, C. J. — ^Then they should have said so.] Tim 
languaore of the order is, ** Whereas it appears to us, &c., having called to our assist* 
ance William Marshall, a surgeon, that James Gill Scowby, &c., is insane." NoW 
(a) For a copy of this order see antCf p. 57. 



MICHA£LMAS TfiBM,, 1844. Ul 

iie statate provides in section 38, that the justices shall " call to their assistance a 
ihyncian, surgeon, or apothecary ;" and then, tiiat " if upon view and examination 
i the said poor person, or from other proof, the said justices shall he satisfied that 
Dch poor person is insane, the said justices shall make inquiry into the place of the 
ist legal settlement of such insane person." Then in the schedule of the Act the form 
f a warrant is given. That form, so &r as it is applicable to the order, is followed. 
lie order need only recite so many facts as will justify the warrant, and in the 
tanner thereby pointed out. [Wiujams, J. — Surely tiie foundation of the autho- 
rs is the statute, and unless that is complied with, the authority falls to the ground. 
k)i.sRiD6B, J. — How is the warrant referred to in the body of the statute ?] The 
rords of the statute are : — " And it shall be lawful for them (the justices), if they 
ball so think fit, by an order under their hands and seals, directed to the said over- 
eers of the poor (». e, the overseers of the parish to which tbe pauper is chargeable), 
tocording to the form in the schedule (5) annexed to this Act, (a) to cause tiie said 
^Qor person to be conveyed," &c. It therefore sufficiently appears that the justices 
liaTe found the pauper insane and on sufficient evidence. They had jurisdiction to 
iedde whether he was insane, and they have decided it. They say '* it appears to 
II;" and that it appeared to them "upon proof" must be intended. [Loan Dsv- 
lus, C.J. — ^The Act of Parliament says, " Upon its being made known to any justice 
i£ any county that a poor person, chargeable to any parish or place within such 
eoonty, is deemed to be insane, either by notice firom the overseer of such parish or 
odierwise," the justice may require him to be brought before any two justices of the 
peace of the same county ; " and if upon view and examination of the said poor 
person, or from other proof, the said justices shall be satisfied that such poor person 
ii insane ;" then the justices shall inquire into his settlement, and may order the over- 
Iter to convey him to the county lunatic asylum, or to a licensed house, by a warrant, 
the form of which is ^ven in the schedule to the Act. The form of the warrant, there- 
Ixre, is perfectiy right ; it follows the form given by the Act ; but upon the face of the 
vder the foundation for issuing it seems to be totally wanting.] But the Court has 
00 power to deal with the original order of the justices at all, for the Court of 
Qniuter Sessions had no jurisdiction to entertain the appeal, the justices having been 
liade respondents instead of the Clerk of the Peace. The case of Reg. v. The Jus* 
Mees of Kent (2 Q. B. 686) decides that point. There, two justices had made an 
order under 9 Geo. 4, c. 40, adjudicating as to the settiement of a pauper lunatic, and 
crdering the overseers of the parish in which the settlement was adjudged to defray 
the expenses of maintenance, &c. Notice of appeal was given to the Clerk of the 
Fesce for the county ; but no sufficient notice was given to the justices who made the 
order, and the Court held that that was not necessary ; for that the proviso of stat. 
9 Geo. 4, c. 40, s. 54, that the overseers of the parish in which such justices shall 
trudge any insane person to be settled may appeal to the Sessions, giving notice to 
ike Clerk of the Peace for the county, who shall be respondent, applies not only to cases 
(ipecified in that section) in which criminal lunatics are detained by order of any 
Court, &c., but also to cases in which justices have adjudged as to the settlement of 
puper lunatics, and made orders of maintenance on their parishes under sections 38 
ind 42. The 54th section of the Act is clearly imperative ; it provides that notice 
tt to be given to the Clerk of the Peace, " who shall be respondent." It is true that 
ID this case notice was given to both ; but that will not exempt parties from the 
iiecessity of choosing the right respondents. In this case the wrong respondent was 
idected ; and no Court of Quarter Sessions can review an order of justices as be- 
tween strangers. The order of Sessions therefore was made without jurisdiction, 
and may be quashed by this Court ; but that does not necessarily bring the original 

(•) Schedule No. 5. — Form of -warrant. — to be conreyed to the coanty lunatic asylum 

** Wbcreas, it appears to us, , two of his Majes- established at , or to the house of , situate 

Vs JBsticcs of the petice for the county of , hav- at , in the county of , the said house beio; 

iif oiled to our assistance , a physician, or sur- a house duly licensed for the reception of insane 

|Rn, or apothecary (as the case may be), that , persons. Given under our hands and seals this 

■hii|i ibii to the parish of , in the said county, day of . To tbe overseers of the poor of 

ii leaatic, iosanr, or a danRcrous idiot (as the case the parish of •** 

^ be), yon are hereby d&ected to cause the said 



122 MAGISTRATES* CASES. 

order under the notice of the Court. In Rex v. The Justices of Middlesex (5 Ad. & EIL 
626), where it was decided that under stat. 13 Geo. 2, c. 18. s. 5, a certiorari to re- 
move an order for stopping a highway may he applied for within six calendar months 
after such order has been confirmed at Sessions, though more than six calendar 
months have elapsed since the order was made, Coleridge, J., said, " The cer* 
tiorari here was in time as far as regarded the order of Sessions ; and the question is, 
whether that, being removeable, drew with it the former order ? I think that the 
limitation of stat. 13 Geo. 2, c. 18, cannot at any rate apply where the first order is 
of no effect, unless enrolled at the Sessions." That is not so with regard to tfaiB 
order ; which now stands in effect as an order unappealed against ; and ought to be 
confirmed by this Court. Rex v. Harrowhy (Burr. S. C. 102), was a case in whidi 
an order of removal was made on the 13th January; on the 20th April that order 
was called in by two justices (one of whom was one of the persons who made it), and 
another order made ; on the 4th May, an appeal was entered against the first order 
at an adjourned Sessions, when it was confirmed, but it did not appear when the 
original Sessions were first holden. There the Court held the second order irregular 
as being made pending the first, and before any appeal, and without shewing any sob* 
sequent settlement to have been gained ; but that the first order must be confirmed* 
though the confirmation of it at Sessions was invalid, because it did not appear whea 
the original Sessions were holden. Accordingly, in that case, the original order was 
confirmed ; and the order of Sessions quashed. Further, the rule here only calls upon, 
the Court to quash the order of Sessions. 

R, Hall, contrk. — As to the original order, the form of warrant given in the sche* 
dule to the Act is not applicable. The order adjudging the settlement is subseqaenfe 
to the warrant, and is entirely distinct from it. The one is merely a direction to 
convey the pauper to the asylum or licensed house ; the other is an order adjadging^ 
the settlement of the party, and requiring the overseers of the parish in which the 
settlement is adjudged to defray the expenses of maintenance, &c. The authority to 
make that order must appear upon the £ce of it ; that is wanting here, and that order 
therefore must be quashed. Then as to the order of Sessions, that must be quashed $ 
because it confirms an invalid order. No doubt the Sessions had jurisdiction ; all tbe 
requisites of the statute were complied with ; notice of appeal and notice of trial weP0 
given to the Clerk of the Peace as well as to the justices and overseers ; that is all 
that the 54th section of the statute requires of the party appealing ; the words are :*-* 
*' giving reasonable notice thereof to the Clerk of the Peace of such county, who shsU 
be respondent in such appeal." That leaves the parties no choice ; neither the Coiir^ 
nor the parties are put to any election in the matter ; in all cases, included in ^StmX 
clause, the Clerk of the Peace is, by virtue of it, made respondent ; and if the appellaat 
gives him reasonable notice of the appeal, he has done all that the statute impoee0 
upon him. The argument, therefore, that the Court cannot look at the original order* 
fiedls to the ground. 

Lord Dbnhan, C.J. — The rule only calls in question an order of Sessions coo* 
finning an order of justices, and we cannot go beyond our own rule ; but that mat 
be made absolute. 

Rule absolute to quash the order of Sessions, 
B. 



The Qubbn v. The Inhabitants of South Fbrribt. 

liUan establiihed rule of the Court not to hear any ea»e, etated by the Seuiontf which promdes Ust 
in one event the Seaioni shall enter continuances and hear the appeal, 

ON appeal against an order of two justices removing Wm. Camel, his wife and 
children, from the township of Shipton, in the East Riding of the county of 
York, to the parish of South Ferriby, in the county of Lincoln, the Court of Quaiter 
Sessions confirmed the order, subject to the opinion of this Court upon a case "tAoA 
concluded thus : — " If the Court of Queen's Bench should be of opinion that the omis- 
sion of the name of the county wherein the parish of Huggate is situate ought not to 
bave prevented the appellants from being allowed to produce evidence in support of tiie 



MICHAELMAS TERM, 1844. 1S8 

seventli ground of appeal, then the Sessions to be directed to enter continuances and to 
hear the appeal. If the Court should be of the contrary opinion, then the order of 
Sessions to be confirmed." 

Archbold, in support of the order of Sessions. — This case cannot be argued ; it states 
that in one event the Sessions are to be directed to enter continuances and hear the 

appeal. In Reg. v. Kesteven and Reg, v. Macclesfield (3 Q. B. 810, & 822 a.), the Court 
lefused to hear cases so stated. [Lord Denman, C. J. — Yes ; the object in coming 

here is not to enter, but prevent continuances.] 
Aeiji, contr^. — This Court has issued a rule to shew cause why the order of Sessions 

libonld not be quashed. [Colbridob, J. — But we can only quash the order upon a 

tise submitted to us by the Sessions; then if that case be so stated that we cannot 

entertain it, what are we to do ?] There is a possibility that the decision of this 

Coort may be final. 
Lord Dbnmak. C.J.— -We cannot act upon possibilities. The case must be struck 

art. Case accordingly struck out of the paper. 



Q.B. Saturday, Nov. 16. 

Thb Qubbn v. Thb Inhabitants of Bloxham. 

Ajwrai which omitM the wordM "brfore fn«/' but merely siatet that it wtu twom at a given place 
md timet with the eignaiure of the eommisrioner, ie fatally drfective ; and the drfeei it not cured 
hf another document annexed^ and rrferring to the affidavit, elating it to have been sworn be/ore 
the eommiettoner. 

The Court will not amend a fatal drfect in a jurat : overruling Rex ▼. Hall. 

JXIGOTT had obtained a rule nisi in the Bail Court on the 12th inst. to set aside 
the writ of certiorari, whereby the respondents in this case had brought up an 
wkr for the removal of a pauper which had been quashed, subject to the opinion of 
ttoB Court, upon a case granted. 

It appeared that the usual notice of the intention to apply for a certiorari had been 
dnly served upon two justices ; but the affidavit required by the statute to attest the 
lenrioe of the notice was defective, inasmuch as the jurat, instead of purporting to 
heawom " before me" (the commissioner), was in these words : — 
"Sworn at Banbury, in the county of Oxford, this 8th day of February, 1844. 

" William Munton, 
" A Commissioner of the Court of Queen's Bench." 
This affidavit was affixed to the notice, and on the notice itself were these 
words: — 

" This is the notice referred to in the annexed affidavit of Charles Egg, sworn before 
«e, this 8th day of February, 1844. 

"William Munton." 
The case was entered in the paper to be heard on the 9th of November, on the 
I2th this rule was obtained. 

Keating (with whom was Pashley) now shewed cause. — The words " before me," 
thich constitnte the sole omission, are not essential. {The Queen v. Sikstone, (a) 
2 Q. B. 520, 2 G. & Dav. 396.) I1ie judgment of Mr. Justice Williams in that 
cise shews that the whole instrument is to be taken together, and that if it thus 
lofficiently appears that the affidavit was properly made, it suffices. [Lord Dbnman, 
C.J. — That case does not apply, for here there is an actual deficiency.] In order to 
the invalidity of the jurat, it must be taken that the commissioner did not see the 
irear ; but from the whole of the documents it clearly appears that he did. 
has been held that where the place where an affidavit was sworn is omitted, 

(c) In tttt CMC an czamination had the following of two parties. The Sessiont quashed the order, 

iant :— ^^ Sworn beton me on,*' &c. ; and " / do holding that it did not appear that the examination 

Mfd^ certUy that the above examination was read was taken before two jostices. The Q. B. held 

^fcr,^ fte. Mbee this there followed the signatures otherwise. 



191 MAGIBTBATE9 QkBMB^ 

liie jurat may neverthdess be good. (Symmera v. Wason, 1 Bos. & Pol. 105.) M 
tiie facts must be looked at : the notice was properly served ; it bears upon it tiic 
words, " the annexed affidavit sworn before me/' thus coupling the jurat ; and tiie 
same commissioner signs both, and both bear the same date, thus removing all pos- 
sible doubt that the affidavit was sworn in the presence of the commissioner. The 
application is also too late ; the case was granted by the Sessions in October, 1843, 
and this rule was obtained only four days ago. Where a defendant was arrested on a 
ca. sa, issued upon a judgment received by defiault on the 5th of April, it was hdd too 
late to apply to set aside the writ on April the 25th, upon the ground tiiat the writ was 
irregular. (Davies v. Watkins 2, Dowl. N. S. 930.) They ought to state when thqr 
were first aware of it. The giving of this notice to the justices where a cer ti o r m i 
goes after a case is granted by the Sessions is mere form. (The Queen v. I%e JnAs- 
hitants of Cartworth, 3 G. & D. 162, per Coleridge, J.) It was contended, on obtain^ 
ing this rule, that perjury could not be assigned upon this affidavit. 

In the case of The King v. Emden (9 East, 437), an indictment, after setting out si 
much of the affidavit as contained a false oath, concluded with a prout paiet by the 
affidavit affiled in B. R. at Westminster, and on this there was an acquittal ; after whidi 
the same defendant was indicted again in Middlesex for the same perjury, but thk 
second indictment set out the jurat of the affidavit ; it was stated to have been sworn 
in London, which was traversed by an averment that in fact the defendant was 80 
sworn in Middlesex, and not in London. There it was held th&t autrefois acquit mi^ 
be pleaded, for the jurat was not conclusive as to the place of swearing, and the same 
evidence might have been given under the first as under the second indictment. 

Paahley was stopped by the Court, who called on — 

Pigott, contrk. — Perjury could not be assigned, on this affidavit, under the terms of 
29 Chas. 2, c. 5. On this affidavit it does not appear that the commissioner who signs .7 
the jurat was the same person before whom the oath was taken. It may have been - 
sworn before some person who has no jurisdiction, for aught that appears to the con- :| 
trary ; for the commissioner merely attests that it was *' sworn at Banbury." Evay '- 
case, except R. v. Emden, since the very institution of affidavits, has ruled that the ~J 
jurat is an essential part of the instrument, and that defects in it are fatal. TV ; 
Queen v. Silkstone has no bearing at all on this case ; it was one of mere ambignitf. : 
[Loan Denman, C. J. — Your argument is as if it were not sworn at all.] It may 
have been sworn, but it does not appear before whom. Laxity must not creep inta> 
these documents. In The King v. The West Riding (3 M. & Sel. 493), a jurat omit- 
ted to state the place of the swearing, and it was there laid down by the Court that 
" to dispense with these forms is only to get into uncertainty and mischief, and, by a 
strain of jurisdiction, to help parties through that which they ought to look to them- 
selves." The respondents say we must refer to the notice to supply the defect in tbis 
jurat ; that is, to construe one document by another which must have been subsequent 
made. We can do nothing of the sort. A jurat must be perfect in itself. If tiua 
mode of perfecting a document were permitted after it is executed, merely pinning one 
to another would suffice, or pinning fifty together, though separately defective, would 
be enough. This cannot be. The memorandum, or the notice, speaks only of the 
affidavit as annexed, not as part of the same document. Either they must contend, on 
the other side, that these are two jurats, or that both put together they make a jurat 
This is inadmissible. In the case of The Queen v. The Inhabitants of S^pston-on'Stour 
(1 D. & Mer. 123, S. C. 13, J. L. M. C. 123). The strictness with which affidavits 
are construed further appears in Oshom v. Tatum (1 Bos. & Pul. 271), where a rule 
was discharged because the affidavit on which the rule nisi was obtained waa not enti- 
tled in any court, the words " in the " being only prefixed. Also, where an affidavit is 
sworn by two deponents, it was held that the names of both must be specified in the 
jurat. {Houlden v. Fasson, 6 Bing. 236.) So, if the month be omitted, the jurat u 
bad. (Ifood v. Stephens, 3 Moore, 236.) It is also fatal to omit the designation of 
the person who signs the jurat as commissioner. (Howard v. Brown, 4 Bing. 398.) 
Where the jurat of a joint deposition was in these words : " Sworn at C, the 2drd g£ 
January, 1843, being read over to, and fully understood by, the said J. A. and 
M. A., before me and a commissioner, &c." This was held fatally defective^ 



MICIUELMA8 TERM, 1844. ItS 

Iwcauae it did not shew that both the deponents had been sworn. (Pardoe y. Terrett, 
2 Dowl. N.S. 903.) In this case the jurat is equally defective, for the affidavit is not 
stated to have been sworn before a person entitled to take it. 

PofA/ey, in reply. — ^There is no stringent rule in the case. The Court has a discre- 
tion in the matter. Omnia rite acta : it is to be assumed that the commissioner did 
bis duty. In The King v. The Inhabitants of Whiston (4 Ad. & £11. 607), it was 
kdd, that inasmudi as justices ought not to allow a parish indenture, unless notice was 
profed, the presumption, therefore, was, that having allowed it, the notice had been 
Mf proved. The same point was again so decided in The King v. The Inhabitants of 
Witneg (191). (a) [Loan Denman, C. J. — Suppose the case of a marksman, 
and that there was no statement of its having been read over to him ; the same rule 
tibtt prescribes its being done, prescribes that it shall be stated ; would the jurat be 
nlid with such an omission ?] No doubt that if a man is a commissioner of this 
Court, he ought to know his duty, and to have done it. It was held in Doe dem, 
Nmmeg v. Gore (2 M. & W. 320), that it was not necessary for a plaintiff to prove 
Ait a commissioner was duly qualified, and had given notices, as required by an Inclo- 
tmt Act, before the execution of a conveyance, upon which the plaintiff declared in 
^ectment. Poole v. Hill (9 Dowl. 300) also supports the same presumption, and is dis- 
tJDgoishable from Potter v. Nicholson (8 M. & W. 294), (b) and the cases cited on the 
odier side. In this case it would have been gross misconduct in the commissioner to 
kfe declared that the annexed affidavit was sworn before him, unless it had been so ; 
ttd such misbehaviour is not to be presumed. At any rate, the Court will amend the 
jurat, or send it back, that the words ' before me' may be inserted. (Ex parte Hall, 8 
L Jour. Q.B. 21 1 ;(c) DoumingY. Jennings, 5 Dowl. 373 ; (d) Ex parte Smith, 2 Dowl. 
^7.) (e) This is clearly a case for amendment ; for the application for this rule, made 
on the ground of this mere technical informality, was not moved for till the eve of the 
4y on which the case was to be tried on the merits. 

Loan Denman, C. J. — It was an impression at first, that we ought, if possible, to 
set over this technical objection, so as to get at the merits of the case itself. But we 
linst adhere to established rules ; and especially to the wholesome provision which 
i^oires that the jurisdiction of a person who administers an oath, and also the fact 
tibat the oath has been taken before the person who has authority to take it, should 
appear in the jurat. There is no difficulty in doing this, nor hardship in requiring it 
to be done. No single case has been cited which is an authority against this require- 
ment. The rules are sufficiently laid down, and it is very important to bear in mind 
Ac words of the Court in The King v. The Justices of the West Riding, in 3 M. & 
Sdw. 494 : "To dispense with these forms, is only to get into uncertainty and mis- 
duef, and, by a strain of jurisdiction, to help parties through that which they ought to 
look to themselves." Neither must we strain our jurisdiction, and thereby invite 
iRegularity and encourage serious defects. This is a defect which goes to the juris- 
diction. The course we are taking will caution parties for the future, and have the 
cftct of inducing more care in the execution of jurats. We cannot amend. In the 
oie of Ex parte Hall, in which I took part, an indulgence was granted which ought 
lot to have been shewn. To amend in these cases would be to encourage negligence 
where strictness is essentially necessary. 

Williams, J. — ^We wish to sustain the strictness with which jurats must be 



'i?. 



'•) In that caie Williams, J., expressly says, fidavits had passed by, allowed this affidavit to be 

' I to the notice, this is not like the case of an sent back to be made perfect, upon first being satis- 

Megatkm, wUeh it is necessary to make in order to fied that it had originally been made in due time. 

shcwjviadfetioo.** {d) In Downing v, Jennings, the omission of the 

H) TUi CMe dedded that the attestation of an letter" s'* after the word defendant, in a rule to sign 

gttmaef to m party executine a cognovit is bad, judgment as in case of a nonsuit, was supplied, it 



snhsoibe himself *' as such attorney,''^ being an omission made by the officer of the Court. 

• 1 & 9 Vict. c. 110, 8. 9, which expressly and (e) In Ex parte Smith, Williams moved to re- 
in tcnss leqn i w i him to do so. admit an attorney. The onlv peculiarity in the case 
(r) Thnt erne dedded, that where an affidavit was, that the names of the deponents were omitted 
beftm m eommisBioner was, by that commis- in the jurat. Pattbson, J. — " As that appears to 
'a Ofsn ut, aent np to the Court in an imper- be only an omission of my clerk, let a new jurat be 
, the Court, though the time for filing af- written, and I will sign it.'* 



186 MAGISTRATES' CASES. 

executed. To sanction these defects in them would lead to an unsafe and unsound 
mode of proceeding. This defect cannot be helped by reference to some other docu^ 
ment. The words of reference may be open to the same species of doubt and uncer- 
tainty as the jurat itself. It must be henceforth understood that it ia required that 
jurats shall be perfect. 

Coleridge, J. — If this is an irregularity only, it is clearly one which cannot be 
waived ; still less can it be cured by referring to the notice to explain it. Were we to 
admit this, we should have some subsequent affidavit to explain the defects in the jurat. 
I think we must stop where we are, and uphold a strict observance of all the essential 
requirements respecting jurats. I wish, with my lord, that we could, if possible, have 
got over this informality, and have gone into the merits of the case ; for we cannot 
help feeling that this omission was probably accidental ; but the rule is, that affidavits 
sh&dl be sworn before the person who takes them. It is argued, that it may be assumed 
that the affidavit was thus taken, although it be not so stated in the jurat : if we held 
this, it is not likely that we should ever see another affidavit with the words " before 
me" annexed to it again. 

WiGHTMAN, J. — This jurat is fatally defective. It is quite consistent with it that thit 
affidavit should have been sworn before some other person than the commissioner who 
has signed the jurat. We are told that the defect is supplied by an identification of 
the notice upon another paper which refers to the affidavit, and states that it was sworn 
before the same commissioner ; but that is not stated in the jurat itself, and it seetnt 
to me that you cannot supply an important omission by a mere declaration afterwanb 
made. 

Rule absolute, quashing the certiorari. 



B.C. November 4, 18, and 21. 

(Before Mr. Justice Pattssok.) 
Thb Queen v. The Recorder of Bolton. 
Mandamu* to a Recorder at Sesnotu to hear the matter of an iigppeal, and give eoete. 

Where an Act of Parliament empowers juaticee tummarily to hear and adjudicate upon eon^Mniibf 
nuutere against their workmen, and permits the drfendant to appeal against his eonmetion, ongimng* 
notice and entering into a recognizance with the sureties, and authorizes the SessiofU, «pos dmt 
proof qf such notice, to hear and determine the matter of the said appeal, and to award such costs 
as shaU appear just and reasonable: it is not competent to the respondents, on the eq^peUanfs aban- 
doning his notice, themselves to enter the appeal, the right to enter it being that qf the appellani 
alone i nor have the Sessions, in the absence qfsuch appeal by the appellant, jwrisdieiion togiwe the 
respondents their costs, which are ancillary to the hearing qfthe iqtpeal itseffi 

Semble, that the proper course to be pursued where a party who gives notice qf sqtpeal againsi a^ . 
summary conviction abandons his notice, is, to apply to the Sessions to estreat his reeognitanee,, 
whereby the conviction stands as though unappealed against, and may be enforced by the eo ni o i e ti ng 
justices in the ordinary manner. 

COWLING on a former day (4th November) obtained a rule calling upon Robert 
Baynes Armstrong, Esq., Recorder of the borough of Bolton, in the oount;^ 
of Lancaster, " to shew cause why a writ of mandamus should not issue, duected to him, 
commanding him to enter, or to cause or allow to be entered, as of the last Grenenl 
Quarter Sessions of the Peace, held in and for the said borough, an appeal, or the 
matter of an appeal, of William Barlow, against the conviction of him, the said Williaia 
Barlow, by two of the keepers of the peace and justices in and for the said borough, 
on the loth day of July last, for wilfully neglecting the working up of certain mate* 
rials in the cotton manufacture, contrary to the statute in such case made and pro* 
vided, with continuances thereon, to the next Greneral Quarter Sessions of the Peace 



MICHAELMAS TERM, 1844. 187 

A and for the said borough, and at such next General Quarter Sessions to proceed 
md hear and determine the matter of the said appeal, or to affirm the said conviction, 
or award such costs to be paid by the said William Barlow as may appear to be 
reasonable/' &c. 

It appeared on affidavits, that on the 15th of July last, William Barlow, of Little 
Bolton, counterpane-weaver, was brought before Thomas Gregson and Edward Ash- 
worth, Esqs., two of her Majesty's justices of the peace, acting in and for the saicf 
borough of Bolton, charged under the 17 Geo. 3, c. 56, s. 8, for that he, the said 
William Barlow, on the 28th of June last, at Little Bolton aforesaid, in the borough 
aforesaid, having been employed by Jacob Lomax, Abraham Lomax, and Isaac 
Lomax, his masters, to work up certain materials in the cotton manufacture, did for 
dght days successively next ensuing the day last aforesaid, wilfully neglect the 
forking up the said materials, contrary to the said statute ; that after hearing the 
ittomeys and witnesses, as well of the said Jacob Lomax, &c., as of the said William: 
Barlow, the said Thomas Gregson and Edward Ashworth did convict the said 
Filliam Barlow of his said offence, and did adjudge that the said William Barlow, 
for that his offence, should be committed to the House of Correction, at Salford, in 
tbe said county of Lancaster, there to be kept to hard labour, for one month. It 
kther appeared, that on the same day (15th July) the said William Barlow gave 
tiie two justices notice, in writing, of his intention to appeal at the next Quarter Ses- 
aons for Bolton, and entered into recognizances, with two sureties, conditioned to 
\rf his appeal, to abide the judgment of and pay such costs as should be awarded by the 
Sessions ; that in consequence of this notice and the entering into the recognizances,. 
tbe said William Barlow was not committed to the House of Correction, but was im- 
mediately discharged out of custody ; that the conviction of the said William Barlow 
las drawn up and duly returned to John Grordon, Esq., Clerk of the Peace of the 
laid Borough of Bolton; that attorneys and counsel were retained to support the. 
conviction at the trial, briefs copied, witnessed examined, subpoenas issued, &c. ; that 
on tbe 22nd of October, the following notice was served at the office of the respondentaf 
attorneys;— 

" Borough of Bolton, in the County of Lancaster. 

•• William Baklow ... Appellant, 

and 
" Thomas Grbgson and - 1 „ j *. 

"Edward Ashworth, Esqs. J ' Respondents. 
"Take notice, that this appeal will not be further proceeded with, and that the same 
ii hereby abandoned. Dated this 22nd day of October, 1844. 
"To the above-named respondents, and to 
Messrs. Gaskell and Son, their attorneys. 

" Taylor and Andrews, Appellant's attorneys." 

That the General Quarter Sessions for Bolton, next after the 15th of July, were* 
Ud on the 24th of October last before the Recorder, and that in the rules and regu- 
latkma for the practice of the Court are the following : — " That notice of counter- 
aanding or abandoning any appeal shall be given in writing three days before the* 
Kssions, exclusive of the day of notice and of the first day of the sessions." 
That no appeal was entered with the Clerk of the Peace for the said borough by or oik 
behalf of the said William Barlow ; that counsel for the respondents appeared in court 
It its sitting on the first day of the sessions, and applied to enter the said appeal 
» behalf of the respondents ; that counsel appeared for the appellant, and objected to 
he appeal being entered ; that it was proposed on behalf of the respondents to prove 
hat notice of appeal had been given, and the recognizances entered into, but that it was 
idmitted on the appellant's part that this was so ; that it was objected on the part. 
i William Barlow that the Court had no jurisdiction to hear the appeal, or to give 
(Hj judgment on the said conviction, the same not being entered, and there being na 
npeal before the Court ; that the Court thereupon, on the said ground of a want oi 
iinfldicti(m« refused the application to enter the appeal ; that the counsel for the appel^ 



198 



HAOISTBATES* CASES. 



lant then applied to the Court to confirm the original conviction, but the Court 
refused to confirm the same, on the ground that there was no appeal before it ; that 
the respondent's counsel then applied to the Court for the respondent's costs, under 
the rule of Court relative to countermanding or abandoning appeals, only one clear day's 
notice having been given, but that the Court refused for the same reason ; that since 
the said General Quarter Sessions application has been made to Thomas Gbnegson and 
Edward Ash worth, Esqrs., to issue their warrant to apprehend and commit the said 
William Barlow to prison, in execution of the sentence passed on him by them ; but 
that they declined the grant to warrant, alleging that their jurisdiction was taken away 
by the notice of appeal given by William Barlow as aforesaid. 

November 18. 

Baines, Q. C, now shewed cause on behalf of the Recorder of Bolton. — ^The convic- 
tion in this case took place under the provisions of the 1 7 Geo. 3, c. 56, s. 8, for not 
working up certain materials in the cotton manufacture, within a limited period (a). 
The conviction took place on the 15th of July, upon which Barlow gave notice 
of appeal. On the 22nd of October, he abandoned his appeal, and there is a rule of 
Sessions, that three days' notice of abandonment shall be given ; but this rule is merelf 
for the purpose of preventing the costs from falling on the appellant in cases where the 
Sessions have the power to award them, and does not give the Sessions jurisdiction to 

(a) The Act of Parliament above referred to is peal, and also entering into a recognizance at thi 
entitled " An Act for amending and rendering more 
effectnal the several laws now in being, for the more 
effectual preventing of frauds and abuses by persons 
employed in the manufacture of hats, and in the 
woollen, linen, fustian, cotton, iron, leather, fur, 
hemp, flux, mohair, and silk manufactures ; and 
also for making provisions to prevent frauds by 
journeymen dyers." 

Section 8 provides that from and after the 1st day 
of July, 1777, if any person, being hired, retain^d, 
or employed to prepare or work up any materials, 
whether mixed or unmixed, for any master or mas- 
ters, shall wilfully neglect or refuse the performance 
thereof for eieht days succesMvely, or havine taken 
in any materials, whether mixed or unmixed, for ma- 
nufacture, from one master, or two or more masters, 
being copartners, shall afterwards take in any mate- 
rials, whether mixed or unmixed, for manufacture, 
from any other master or masters, or shall procureor 
permit himself or herself to be employed or retained 
In any other occupation or employment whatsoever, 
sooner than eight days before the completion of the 
work first taken ; then, in every such case such per- 
son thereof being lawfully convicted by the oath or 
(being of the people called Quakers) affirmation of 
one or more credible witness or witnesses, before 
two or more justices of the peace of the county, 
ridinfr, division, city, liberty, town, or place, where 
the offence or offences shall be committed, shall be 
«ent to the House of Correction, or other public 
prison, there to be kept to hard labour for any time 
not exceeding three months nor less than one month. 

Section 20 provides, that if any person shall think 
himself or herself a^rgrieved by the order or judg- 
ment of any two justices before whom he or she 
shall have been convicted of any of the offences of 
the said Acts of the twelfth year of the reign of King 
George the First, and the twenty-second year of 
the reign of Kin§^ George the Second, or in this Act, 
each person may appeal ; and the said justices are 
hereby required to make known to such person, at 
the time of such conviction, his or her right to ap- 
peal to the next General or General Quarter Ses- 
sions of the Peace, to be holden for the county, 
riding, division, city, liberty, town, or place where 
foch conviction shall have been made (such person, 
mt the time of such conviction, giving to such jus- 
ticea notice in writing cf his or her intention to ap- 



time of such notice, with sufficient sureties, eoodi- 
tioned to try such appeal, and to abide thejud^meit 
of and pay such costs as shall be awarded by the 
jns'ices at such Sessions) ; bat if the person ghinf 
such notice of appeal shall not, at the Ume of gtrisf 
such notice, enter into such recognizance as afore- 
said, then the justices to whom such notice of appal 
shall have been given shall and may commit adk 
person or persons to the House of Correction, or 
other public prison, of such county, riding, divliioB, 
city, liberty, town, or place, there to remain ontfl 
the next General or General Quarter Sessions cC 
the Peace to be holden in and for such place, anlos 
such recognizance shall be sooner entered into ; and 
the said justices before whom such conviction shall 
have been made, or any other two or more justice! 
of the same county, riding, division, citr, libertfy 
town, or place, are hereby authorized and reqaired« 
upon due proof made of such notice of appeal, either 
by the acknowledgment of the justices to whom the 
same shall have been given, or otherwise, to hear 
and determine the matter of the said appeal, and to 
award such costs as to them shall appear just and 
reasonable to be paid by either party ; and if upon 
the hearing of such appeal, the judgment of the 
justices before whom the appellant shall have beeft 
convicted shall be affirmed, such appellant sbally 
within forty -eight hours next after the tame shall 
be so affirmed, suffer such corporal punishment at 
shall have been directed to be inflicted upon him or 
her, for the offence whereof he or she shall htm 
been convicted, or shall immediately pay the warn. 
which he or she shall have been adjudged to foifelL 
together with such costs as the justices in the said 
Sessions shall award to be paid by him or her, ftv 
defraying the expenses sustained by the defrndaat 
or defendants in such appeals, or in default of 
making such payments, shall be committed to ths 
common gaol or House of Correction, In tbs 
same manner, and for the same time, to be com- 
puted from the affirmance of such conviction, M 
shall be directed by the original judgment of con- 
viction, unless the person or persons so convietcd 
shall have been imprisoned under 1^ original 
conviction, in which case the time for which sock 
person or persons shall have been so confined, 
shall be included in the order of eonflrmatioD. 



MlCHIiKfiMM TOM, mi. 1st 

ur an ajipeaU whidbi can only be determined by a reference to the Act of Parliament 
d^ Tlie xespondents, cm the appeUant fiuling to enter hia appeal, applied to be at 
ftfj themaelvea to enter, in order that the appeal being then before the Court, the 
ioorder might hear it and give them their coats. This the Recorder refused to permit 
be done, and he waa right in so doing. The proper course for the respondents to 
fe taken, when the appellant did not enter his appeal, would have been to have 
sved the Court of Quarter Sessions to estreat the recognizance. The Queen v. The 
\tiices of the West Riding of Yorkshire (7 Ad. & £11. 583), and Haifnes v. Haytot^ 
B. & C. 293), shew that the Sessions have power to do this, and that such would have 
en the proper step to have taken. If this had been done, the Court would have 
treated the recognizance, and the original conviction would have been in fidl force ; 
would have been uni^pealed against, and may have been carried into effect. 
'▲TTBsoN, J. — ^The case of The King v. Twjiford was mentioned on this point on 
ifing for the rule.] I will consider that case presently. An appeal being entered 
a respondent is a thing unheard of. [Pattsson, J. — Not quite unheard of,"] Only 
ard of to be condemned. In The Q!ueen v. The Justices of the West Riding of York'- 
cr«, in the matter of the appeal between Sheffield and Crich (12 L. J. N. S. M. C. 148)> 
waa held that a Court of Quarter Sessions has no jurisdiction to enter an appeal upon 
t motion of the respondents. [Pattbson, J.-«Mr. Cowling did not put the question 
Uie right of the respondents to enter the appeal on any general grounds, but upon 
t particular words of this Act of Parliament.] Then, the general rule being admit- 
I, how is it ajQfected by the appeal clause, section 20 ? The same words as are used 
this Act are to be found in die 17 G^o. 2. The privilege of appealing is one per* 
sal to the appellant, and upon his proving at the sessions his notice of appeal, it ia 
be heard. The 49 Greo. 3, c. 68, s. 5 (regulating proceedings in bastardy, before 
e Poor Law Amendment Act), uses similar words as to an appeal. So, ako, in the 
' Geo. 2, c. 34, s. 4, the same words occur. In The King v. The Justices of Esses 
I T. R. 583) it was held, that if a person give notice of appeal to the Quarter Sea- 
ms against a poor-rate, and do not enter his appeal, the Sessions cannot award costs 
' the respondents under the 17 Geo. 3, c. 38, the determination of the appeal being a 
■dition precedent to the power to give costs. If this power to award costs, where 
e appellant has failed to enter his appeal, existed, it would have been quite unneces- 
ry for the legislature to have passed the 8 & 9 Wm. 3, c. 30, the 3rd section of which 
dbles the justices at sessions to award costs upon proof of notice of appeal, though no 
tpeal is prosecuted. The object of the recognizance is to compel the party to enter 
8 appeal and abide the event. It is said that the Sessions have the power, however,, 
award the costs, if not to hear the appeal ; but this is clearly not so ; for the juris- 
:tion, as to costs, is merely ancillary to the hearing of the appeal, and not indepen- 
Bt of it. In The Queen v. The Inhabitants of Stoke Bliss (1 New Sess. Cases, 314,. 
d 13 L. J. N. S. M. C. 151), this point was discussed. In the case of The King ▼. 
fjford and Another (5 Ad. &. £11. 430), which was an application for a mandamus to 
npel two justices to enforce their orignal conviction, the facts were these : a party 
1 been convicted, under this Act, by two magistrates, and sentenced to eleven weeka*^ 
priaonment and hard labour ; upon this he gave notice of appeal, but, not entering 
the required recognizance, he was committed to gaol. The party not having 
[y entered his appeal, he was in due course discharged by the Sessions, and the 
ort, upon argument, discharged the rule, Mr. Justice Littledale observing, " If the 
meting magistrates were now to issue their warrant to imprison the party for 
fen weeks, it might turn out that half the imprisonment originally adjudged had 
m already suffered. It is a very doubtful case, not, I think, provided for by the Act.'* 
that case the party had suffered a considerable portion of his imprisonment before 
t sessions occurred, and it was doubted whether the justices could, in such case, 
eet the imprisonment to be suffered again. Here there has been no imprisonment^ 
d nothing has been done under the sentence. The parties interested in enforcing the 
Bviction should have applied to the justices to have enforced their conviction, and if 
ej had declined, they could have come to this Court for a mandamus to have compelled 
em. The decision in The King v. Tuft/ford turns entirely on the fact of the appellant 
ring been in prison. Independently of these arguments, it would appear by the 6 & 



190 MAGISTRATES' CASES. 

7 Vict. c. 40, s. 1, that so much of the 17 Geo. 3, c. 56, as relates to the manufac- 
tures of woollens, linen, cotton, flax, mohair, and silk, is repealed, and other proidsions 
are substituted, amongst which there is an appeal clause, section 29, which gives an 
appeal in cases only where the sum adjudged to be paid shall exceed 20s., or the impri^ 
sonment shall exceed one calendar month : and this being so, and the conviction in this 
case being only for one month, no right to appeal arose. [Pattbson, J. — Does it . 
appear expressly that this is a case within the Act ?] It does not appear distinctly, 
but it is for the other side to shew that it is not. 

Cowling, contra. — This rule should be made absolute. The object of this motion is 
to ascertain who are the proper parties to put the law in force against persons who 
violate the law, as the appellant in this case has done. At present l£e workmen in tbe 
neighbourhood of Bolton can defy their employers, for if they refuse to complete thdr 
work and are convicted under the Act, they have only to appeal and then abandon thdr - 
notice to be discharged from all responsibility, since the Recorder thinks he has no 
jurisdiction, and the magistrates think that they have none in such a case. The appli- 
-cation is not that the Recorder shall hear the appeal, but that he shall proceed to hinr 
•and determine the matter of the appeal. The 20th section of the 17 Geo. 3, c. 56, ii» 
*' hear and determine the matter of the said appeal ;" but this is not the only section 
bearing upon the point ; there is the 22nd, which says, " that the justices before whom 
fiuch conviction shall be had shall cause the same to be drawn up in the form afbreMicI, j 
to be fairly written upon parchment, and transmitted to the next (General or Genenl £ 
Quarter Sessions of the Peace, to be held for the county, riding, division, city, liberty, t 
town, or place wherein such conviction was had,. to be filed and kept amongst tb / 
records of the said General or General Quarter Sessions ; and in case the person or 
persons so convicted shall appeal from the judgment of the said justices to the nil 
"General or General Quarter Sessions, the justices on such General or (General Qoaiter 
Sessions are hereby required, upon receiving the said conviction drawn up in the font 
aforesaid, to proceed to the hearing and determination of the matter of the said appe^t 
-according to the direction of the said Act." As soon, therefore, as the conviction ii 
•returned to the Quarter Sessions, they have jurisdiction over the case, and the jnrii* 
diction of the justices ceases. The estreating of the recognizance is a very insnflficiait 
remedy. [Patteson, J. — ^If the legislature intended that the respondents should be ^ 
'at liberty to enter the appeal, or otherwise have the matter settled by the Sessions, wlmt ^ 
•was the use of requiring a recognizance ?] To give us our costs, and it is only of vitae i 
for this purpose ; we had certainly a right to our costs, which by the 20th section 00 * 
^ven independently of the appeal. 

Cur. adv. vnXf. 
November 20. 

Pattbson, J. — ^This was an application for a mandamus to the Recorder of BoteoD* 
requiring him to hear a case, the subject-matter of an appeal. I don't know whether 
the rule nisi was worded, to " hear an appeal," or " enter an appeal," but it is not nft* 
terial, as it might have been put in that shape ; but the mandamus is now asked "to 
bear the subject-matter of the appeal." and that is the most favourable way, or, at sE 
events, " to give the costs to the respondents." It was a conviction under 17 Geo. 
2, c. 56, and there certainly is considerable difficulty in the case. The party 
was convicted by two magistrates, and he entered into a recognizance, under the 
terms of the Act of Parliament, which says, he may appeal to the Quarter SeaaaDS» 
giving notice in writing, at the time of the conviction. That he did. According^ 
be was not imprisoned. Then the Act says, that if he does not enter into a 
recognizance, with sufficient sureties, he shall be sent to prison. There is tlM 
<case of King v. Twt/ford, but the circumstances are not the same; there tiie 
party was in custody. The Act of Parliament then says, " and the justioea at nidi 
sessions are hereby authorized and required, upon due proof made of such notices of 
appeal," which I suppose means the notice at the time the commitment took plaoe» 
*" either by the acknowledgment of the justices to whom the same shall have been 
given, or otherwise, to hear and determine the matters of the said appeal, and to awnd 
such costs as to them shall appear just and reasonable to be paid by either party." 
Now the party here giving t^e recognizance countermanded the notice of appisd 



inCHAELMAS TERM, 1844. 13t 

before the sessions arrived ; he did not enter the appeal. Then it is said, that under 
the particular words of this Act of Parliament, the magistrates who convicted had the 
light to enter that appeal for the appellant, and call upon the Recorder to hear the 
sobject- matter of the appeal, and determine upon it. We have said in one or 
two cases, that we know of no instance in which a respondent has a right to enter 
in appeal. The liberty and power given by the Act of Parliament to appeal is 
certainly given, not to the respondent, but to the appellant; and we have said 
tiiere is no remedy if the party does not appeal. That is the legal rule, and I 
don't think Mr. Cowling controverted it as a general rule ; but he says, that the 
vords of the Act of Parliament authorize the magistrates to hear, though no 
ippeal is entered ; and that he founded upon these words : " are hereby authorized 
nd required, upon due proof of notice of appeal," &c. These same words, 
viiich are to be found in other Acts of Parliament, are not found in the 17 Greo. 
S; the words there are different; but I think the very same words are to be 
foond in the 49 Geo. 3, c. 58, s. 5, and I have looked into other Acta of Parlia- 
BCQt, and I think they are to be found there; and, therefore, I hold that these 
lords, "authorizing the Sessions to hear and determine the matter of the said 
ippeal," do not mean, without entering it; no other decisions have been come to 
if the Courts that I am aware of. It seems to me impossible to contend that 
tile Act of Parliament meant that where the party who gave notice of the appeal, 
41 not enter it, that the Sessions, nevertheless, should have jurisdiction to hear 
mi. determine it. What is meant by the words, "upon due notice of appeal," 
11 a condition thrown upon the appellant, that he is to satisfy the Sessions of 
mdi notice having been given, before they can enter upon it; but a prior step 
fenst be taken to enter it, and make it matter cognizable by them. I think, there- 
face, it is not possible to construe the Act of Parliament in any other way, than 
h say where notice of appeal is given, and the appeal is entered, then they may 
alter into it, but not otherwise ; this has not been entered at all, and I am clear 
ha the Recorder had no authority to hear the subject-matter of this appeal. 
It 18 said, an inconvenience might result if he had not such power, because it is diffi- 
Bolt to see what is to be done with the party ; there is the remedy of estreating the 
Eceognizance, and making the parties who have entered into the security pay the 
ftenalty; that may be an insufficient remedy. There is that remedy, however. 
But it is said, tlmt it is not clear that the original conviction can then be proceeded 
qioa by the magistrates. For my own part, I Uiink when there has been a recogni- 
BUMe and notice of appeal, and a party to it has suffered no imprisonment, I should 
atotain no doubt that the not entering of the appeal according to the recognizance 
! to the same thing as if there had been no notice of appeal at all, and no recogni* 
I had been entered into; in which case, although the party was not committed 
dy by the magistrates upon conviction, I have no doubt they might issue a 
■mant and imprison him. I entertain no doubt the magistrates might do so now. 
(be difficulty in The Queen v. Twyford does not arise here, because tiiere the party 
IM in custody under a warrant, and the difficulty arose upon the extraordinary 
imstOQ in the Act of Parliament. IShe Court did not say the magistrates might 
lot issue their warrant ; but, as it was doubtful, they would not put the magis- 
mles in jeopardy ; it does not follow that the magistrates might not have done 
\ even then ; but where the party had suffered no imprisonment they may do it ; 
«t whether they can or not, it is dear the Recorder has no power. Then Mr. 
knrling says I am entitled to have a mandamuB to the Recorder for him to give the 
iities such coats as they ought to have, because, he says, this very Act of the 
7 Geo. 3 dnects the Sessions to award such costs as to them should appear just 
nd reasonable ; but, so far as that Act of Parliament goes, it is clear these costs 
le andUarj always to the hearing of the appeal ; it is clear no express authority 
I i^iven to award the costs to the party on whom the notice of appeal was served, 
phoe tiie appeal was not followed up. But Mr. Cowling, in moving for this 
lie, cited the 8 & 9 Wm. 3, c. 30 ; whether or not he meant to apply it to this 
iK I do not know ; I should hardly think he did, for it is confined to settlements 
at diere the Act of Parliament dwn give authority in e^^press terms, though 



Ml BfAOmRATES^ OUUM. 

xio appeal is entered; but tiiat relates only to cases of removal. Tliere \iBa a 
case cited of The Queen v. Stoke Bliss (1 D. & M. 135) ; there the Court said, evoi 
in the case of setdements, although l^e Court of Sessions had the power to have 
given the costs under 8 & 9 Wm. 3, yet inasmuch as they had taken upon themsdves 
to determine the sqppeal, which they had no right to do, because it was not entered^ 
and had given costs, that they conudered* by the very words of the order of Court 
confirming the order of justices, they had exceeded their jurisdiction. I only wM>"ti"i 
it, because there shall be no misunderstanding as to the extent of that case, but 
it does not apply. It seems to me to be clear that the Recorder acted perfectly 
right ; that the mandamus ought not to go for the sake of a return, because, when the 
point is clear, such expense ought not to be incurred. The Recorder determined 
that he had no authority either to hear the appeal or give costs, and I think ht is 
perfectly right. The rule must be discharged, and the Recorder is entitled to have lus 
costs. 

Rule discharged with costs* 
T. W. 5. 



B.C. Saturday, November 23. 

(Before Mr. Justice Wiohtman.) 

Thb Qubbn v. Thb Justicbs of thb West Riding of Yorkshirb* 
In the matter of the Appeal between Stanlby-cum-Wrentho&pb, - Appellants, 

AVD 

Alvbbthorpb-cum-Thorns, -•*■••• Respondents. 

An appellant pariah which omiU to give notice of appeal against an order qf removal udtkin the 21 
days it not bound to wait until the pauper ie actually removed, but may give notice after Hi 
expiration qf that number qf days, and brfore removal; the grievance under the ^ Sf b Wm. 4, 
c. 76, s, 79, being the order ((f removal, 

ON the first day of Term, Pashley obtained a rule caling upon the justices of the Wert 
Riding of Yorkshire to shew cause why a writ of mandamus should not issue, com^ 
mandingthem to enter continuances and hear an appeal between the above-named parishes. 
It appeared that, on the 29 th of July last, an order of removal was made, which was served, 
togetiier with the other documents, on the 2nd of August. On the 23rd of August notice of 
appeal was signed, and the same was served on the respondents on the 24th, being moce 
than twenty-one days afber the service of the order of removal. On the 25th of Sep- 
tember, the groimds of appeal, together with notice of trial for the ensuing sesaioiii^ 
were delivered. The pauper had not been removed ; and on the appeal coming on 
for trial at the October sessions, it was objected, on the part of the respondents, Uiat^ 
as the appellants had omitted to appeal within the twenty-one days prescribed by the 
4 & 5 Wm. 4, c. 76, s. 79, (a) and as the pauper had not, in fact, been removed, the 
appellants had no right to appeal. The justices were of this opinion* and refused to 
hear the appeaL « 

JR. Halt and Overend now shewed cause. — ^This case will depend upon the constmo- 
tion to be put upon the 79th section of the Poor Law Amendment Act, which gives the 



{a) The 79th sectioa enacts, **That from and said, or any three or more of such 
ifter the Ist day of November, 1S34| no poor shall, by writing, under their hands, agree to talk 
person shall be removed or removable under any mit to such order, and to receive such poor penos, 
order of removal, from any parish or workhouse, by it shall be lawful to remove such poor person, ae- 
zeason of his being chargeable to or relieved therein, cording to the tenor of such order, althoogh lla 
until 21 days after a noUce in writing of his beiog so said period of 21 days may not have elapsed : Fro- 
chargeable or relieved, accompanied by a copy or vided also, that if notice of appeal against sock 
eoucferpart of the order of removal of such person, order of removal shall be received by the o verse ers 
and by a copy of the examination upon which such or guardians of the parish from which such poorpenaa 

■ rithln the 



order was made, shall have been sent by post, or is directed in such order to be removed wit] 

otherwise, by the overseers or guardians of the pa- said period of 21 days, it shall not be lawful to r»* 

rish obtaining such order, or any three or more of move such poor person until after the time forproee* 

•aeh guardians, to the overseers of the parish to cuting such appeal shall have expired, or in «■§• 

whom such order shall be directed. Providedalways, such appeal shall be duly prosecuted, until aftw tkt 

that if such overseers or guardians as last afore, final determination of such appeal.*' 



MICHAELMAS TERM, 1844. ISS 

^t to appeal against an order of removal. The power to appeal is not of common 
rar origin ; it depends altogether upon the express words of the Act of Parliament giving 
t; nor will the Courts imply a right to appeal where there are not these express words* 
liuiy cases have decided this. Rex v. The Justices of Herefordshire (3 T. R. 504), 
^v.The Justices of Surrey (2 T. R. 504), Rex v. Hanson (4 B. & Aid. 519), Rex 
r. Skone (6 East, 514), Rex v. The Justices of Lincolnshire (3 B. & C. 548), Reg. v. 
Btodb and Another (8 Ad. & Ell. 405), are all in point, to shew that a right of appeal 
wist be given by express words, and will not be implied. Under the old statute of the 13 
k 14 Car. 2, c. 12, no power to appeal arose until after actual removal. (Rex v. The 
Inkabiiants of Norton, 2 Str. 831 ; Reg. v. The Justices of Salop, 6 Dowl. 28.) By 
tike 4 & 5 Wm. 4, c. 76, s. 79, the appellant parish have a right given to them of 
gifbg notice of appeal within the twenty-one days : under this Act, their right to 
appeal is confined to this period, and if they allow it to pass, they cannot appeal, unless 
tibe pauper is removed, whereupon their right to appeal under the 13 & 14 Car. 2 
mes. Here there has been no removal. The words of appeal in the 79th clause of 
tlie 4 & 5 Wm. 4 are in the proviso, namely : " Provided also that if notice of appeal 
igainst such order of removal shall be received by the overseers or guardians of the 
parish, from which such poor person is directed in such order to be removed, within 
the said period of twenty-one days, it shall not be lawful," &c. The question is, what 
is the right of appeal under this proviso ? The King v. The Justices of Suffolk (4 Ad. 
4 Ell. 319), decided just after the passing of this Act, shews that it is still competent 
hr the appellants to appeal under the old law ; but the right to do so has not arisen in 
this case, and the new statute gives a right only within the twenty-one days. [Wioht- 
iriir, J. — You say, if the appellant parish allow the twenty-one days to elapse without 
giving notice, that they cannot afterwards appeal until removal.] Exactly so. In 
Done of the cases which have been decided upon this point has it appeared that the 
pmper was not removed. In Rex v. The Justices of Leicester (4 Dowl. 633), where 
iotice was given after the twenty-one days, it does not appear that the pauper 
ftas not removed. So, also, in Reg. v. The Justices of Salop, in which case Mr. 
Hstice Littledale says : " It does not appear to me that the appellants were 
aggrieved until the actual removal of the pauper, although in certain events they 
Bn)^t be required to pay certain costs and expenses." In Reg. v. The Justices 
9f Middlesex (9 Dowl. 163), it appeared that the pauper had been actually re- 
■o?ed; and in Reg. v. The Justices of Cheshire (1 Dowl. N. S. 570). a removal 
lid also taken place. The case of The Queen v. The Justices of Lancashire (12 
L. J. M. C. 110) does not apply, as there the order of removal was suspended. 
Ae result of all the cases is, that the Poor Law Amendment Act does not take 
iway the right of appeal under the 13 & ^14 Car. 2, but gives a new right, which 
■ to be exercised within a limited period. By the Poor Law Amendment Act, the 
pitvance is the order of removal, and not the removal itself; but the remedy against 
tbt grievance ceases at the expiration of the one-and- twenty days. 

Pashley and Pickering, contrk. — It is said that there is a vacuum from the expiration 
tf the twenty-one days to the actual removal, during which no appeal can be made. 
np Queen v. The Justices of Leicester, cited on the other side, however, is quite in 
point, and shews that the notice of appeal need not be given during the currency of the 
t*aity-one days, but may be given after, and before actual removal. So also 7%e King 
r. The Justices of Suffolk. Tlie only object of giving notice of appeal within this 
niod is to avoid the expense of removal. The grievance against which the appeal is 
^fen is the order of removal, and that remains in operation whether the pauper be 
cnoved or not. The Queen v. The Justices of Middlesex and The King v. The Justices 
fSvffoik are both in point in our favour. It is said on the other side, that no appeal 
an be given, except by express words ; but even under the 79th section of the 4 & 5 
Wmm 4, c. 76, the appeal is only given by implication, there being no express provision 
hat tiie parties mag appeal, llie other side admit that the grievance is the order of 
cmoval, but they say that though the grievance still continues, the remedy for it sud- 
My ceases, which surely cannot be correct. 

WiGBTMAN, J. — It is said that this is a novel case; it may be so, but I have no diffi- 
shy whatever in coming to a satisfactory conclusion. The statute of Charles gave an 



Id/k MAGISTRATES' CASES. 

appeal on an actual removal taking place, and the Sessions had no jurisdiction until 
then. But by the Poor Law Amendment Act, the pauper cannot be removed untfl 
after twenty-one days' notice of chargeability has been given, and not even then, if 
notice of appeal has been given within that time. The case of The Queen v. The Justices 
of Middlesex (9 Dowl.) shews that the notice of appeal may be given after the twenty- 
one days ; but it is said that if no notice of appeal is given within this period, no right 
of appeal arises until after actual removal. The reason for not appealing under the old 
statute before removal, is, that there is no grievance until then ; but it is conceded that 
here the grievance is the existing order of removal, and against that order they have a 
right to appeal, notwithstanding they have omitted giving notice within the twenty-one 
days, and the pauper has not been removed. The order of removal, is the grievance* 
and whilst that remains, the appellants have a right to appeal against it. 

Rule absolute. 
T. W. S. 



Q.B. Wednesday^ November 20. 
The Quben v. The Inhabitants of Wooldalb. 

Upon appeal againtt an order of removal, the examination of the pauper diteloeed a settlement hf 
service, under an indenture qf apprenticeship, ** made between the said Joseph Roberts (the matter), 
if the one part, and myseff, therein by mistake called John Beaumont, Sfc, qf the other pert** 
The indenture itself purported to be'* Between J, R., qf the one part, and John B., of the otkr 
part,** and witnessed ** that the said John B. hath qf his own free-will, and with the cwmi 
of, and by his father's, John B,, has put and bound himself," 8fc. But in the covenants by tk 
master, the words were, ** doth covenant, promise, and grant, 8fc. to and with the said Joseph B,, 
apprentice,** and the deed was executed by the pauper in the name of Joseph, Held, that then 
was no patent ambiguity as to the person bound s that this was a valid binding qf Joseph, and ihst 
he gained a settlement by service under that indenture. 

In the instrument the term of service was expressed to be "for, during, and until the term qfhii st» . 
tain ages 21 years, thence next following, be fully completed and ended.** Held, that though Ut 
language was so imperfect, the intention of the parties was clear enough, and that the Court fssd 
give ^ect to that intention, by construing it to mean ** until he shall attain the age qf 21 yew; 
and also that the term sufficiently appeared to be of more than 4.0 days' duration from the e o i e im it 
on the part qfthe master to pay wages ** yearly and every year,** and to allow the apprentice tm 
weeks to go to school, ** yearly and every year.** 

AN order of removal of Joseph Beaumont and Alice, his wife, from the township of 
Upperthong, in the West Riding of Yorkshire, the respondents, to the township 
of Wooldale, in the same riding, appellants, had been confirmed, subject to a cai^ 
which stated that the examination of the pauper disclosed a settlement in Wooldale, bf 
indenture of apprenticeship, dated the 2Stj^ of March, 1789, whereby the pauper wai 
apprenticed to Joseph Roberts, of Cinderhills, Wooldale, clothier, " Made betweea 
the said Joseph Roberts, of the one part, and myself, therein by mistake called Jokh 
Beaumont, and therein described John Beaumont, of Holmfirth, &c., of the other part*^ 
The case then set out the indenture in the terms following : — 

" This indenture, made the 28th day of March, 1789, &c., between Joseph Ilobert8» 
of Cinderhills, in the parish of Kirkburton, and of York, clother, of the one part, and 
John Beaumont, of Holmfirth, in the parish of Aldmonbury and Count, aforesaid, of 
the other part, witnesseth, that the said John Beaumont hath, of his own free will, and 
with the consent of and by his father's, John Beaumont, has put and bound himadC 
apprentice to and with the said Joseph Roberts, and with him, after the manner of aa 
apprentice, to dwell, remain, and serve, from the daite hearof, for, during, and until the 
term of hie attain ages twenty-one years thence next following be fully compleated and 
ended ; during all which term the said apprentice his said master well and fidthfully 
shall serve, his secrets shall keep, his lawful conmiands shall do, &c. « « # 
And the said Joseph Roberts, for himself, his executors, administrators, and assigna* 
dotli covenant, promise, and grant, by tliese presents, to and with the Moid Joteyk 
Beaumont, apprentice, that he, the said Joseph Roberts, his executors, adminiatratonu 
or assigns, shall and will teach, learn, and inform him, the said apprentice, or canaa 
him to be taught, learned, and informed in the arte or mysterey of a dother^ wUdi 
said master now useth, after the best manner of knowledge that hee or thejmaj or CHB| 



MICHAELMAS TERM, 1844. 1S5 

th all circumstances thereunto belonging. * * ♦ ^Iso, the said master is 
pay his apprentice, or cause to be paid, 3 shillings yerley and everey year, during is 
prenticeship ; and the said master to provide him all wearing apparel whatsoever 
iring his apprenticeship, &c.; and the said master to allow his apprints two weeks to 
•o to school yereley and every year during his apprintiship ; and for the true perform - 
ce of all and singular covenants and agreements aforesaid, each of the parties afore- 
id doth bind himself unto the other firmly by these presents. In witness whereof, the 
rties above-named to these present indentures interchangeably have set their hands 
d seals the day and year above written. 
" Scaled and delivered (being first duly stamped). 

•' John Beaumont, Carer. Joseph Roberts. (L.S.) 

" John Beaumont, Clother. Joseph Beaumont. (L.S.)" 

The second ground of appeal was as follows : — " That the said examinations do not, 
>r either of them does, disclose any ground of settlement in and removal to our said 
wnship other than an alleged service and residence there, under a supposed indenture 
apprenticeship, which said indenture, as appears by the examination of the said 
seph Beaumont, being one of the said examinations whereon the said order was made, 
and always was, bad and insufficient, and not obligatory on any person thereby sup- 
sed to be bound apprentice, inasmuch as the said indenture is, and always was, am- 
ruous on the face thereof, both as to the person who was intended to be bound 
prentice thereby and the term for which it was intended that he should be bound, 
d in other respects." 

The third ground of appeal was, that the examining justices, " improperly, and con- 
iry to law, admitted parol evidence in explanation of ambiguities apparent on the 
36 of the indenture." 
The case concluded thus :— 

" If the Co\u"t of Queen's Bench shall be of opinion that on any of the objections 
ited in the grounds of appeal the Sessions ought to have quashed the order, then that 
der, and the order of Sessions confirming the same, are to be severally quashed ; 
herwise, both the said orders are to be affirmed." 

Pickering and G. Hardy, in support of the order. — The real question here is, was 
e binding valid ? If the deed is good, there is an end to the objection. Could not the 
aster have sued upon it ? In Mayelston v. Lord Palmerston (1 M. & M.6, S. C. 2 C. 
P. 474) one of the parties to a deed was named as James C. in the commencement, 
d once afterwards : in two other passages he was afterwards named as George C, 
id he executed it as George C. In the declaration he was called James, which 
IS held a fatal variance, but it would have been otherwise had he been sued as 
eorge C. So in this case there is no doubt that the master could have sued 
(seph Beaumont, who executed the indenture in his right name. Hall v. Cazenove 
East, 476) ; Williams v. Bryant (5 M. & W. 447) (a) ; Gould v. Barnes (3 Taunt. 
H) ; Hyckman v. Shotholt (Dyer, 279, a.) ; Evans v. King (Willes, 554), in which 
se it is said that it is certain a person may sue and be sued not only by his 
je name of baptism, but by any first name he has acquired by usage or reputation. 
ic also Field v. Winlow (Cro. Eliz. 897) ; Maby v. Sheppard (Cro. Jac. 640). No 
abiguity arises from the use of the word John in the middle of the deed, for it 
Lght have been omitted altogether, and yet not have vitiated the agreement with the 
aster. (The King v. St. Peter' s-on- the- Hill, 2 Bott. 500.) llie words, moreover. 
plain themselves — *' the said Joseph B., a|>prentice," can refer alone to the party 
ho as apprentice executed the indenture. (Athertons case, 3 Coke Lit. 17, b.) In 
he King v. Exminster (6 Ad. & Ell. 598, S. C. 1 Nev. & P. 603), the words of an 
ceptance and assignment of a parish apprentice were—** The said T. M. doth hereby 
sign the said Elizabeth Matthews (the apprentice), and the said M. P. doth hereby 
;ree to accept the said Elizabeth Melhuish" — yet this misnomer was not held to 
lount to a variance, the intention being clearly manifested. So here, even inde- 

[d) T^iis case is one of authority on points of ti<ii ni executing the bond as W. B. he was known 

riance. The notion was in debt on a bond. The b\ thHt name. Held, that the proof suflicirntly 

dntiff declared agdnst W. F. B., sued by the sustained the issue, and that there was no variance. 

me of W. B. On a plea of non est factum it was St-e also Com, Dig. Fait. E. 3. 
rwn that his name was W. F. B., but that at the 



IM MAGISTRATES* CASES. 

pendently of the execation in the right name, there is no ambignity which may not 
be explained by internal evidence, the necessary connection being supplied by the refer- 
ence of one part of the indenture to the other. In such case there is no ambiguity 
to explain. (Doe dem. Westlake v. Westlake, 4 B. & Aid. 57.) Where the miwmomir 
is in a part which may be struck out without invalidating the instrument, it is meie 
surplusage. {The King v. Morris, 1 Leach, C.C. 127.) No such person as John Beanmoot 
bound himself, and evidence of this was admissible. In Doe d. (xeorge Gord r. 
Needs (2 M. & W. 129), it was held that parol evidence was admissible to shew tbit 
a testator intended that a house devised to " Gkorge the son of Gord" ahoold go to 
Gkorge the son of George Gord. See also Lady Hewley's case (2 Phil. Evid. 286). 
Faro] evidence is admissible where the deed would be a nullity without it. (T%e Kmw§ 
v. Cheadle, 3 B. & Adol. 833.) This is not a case where the apprentice has not 
signed the indenture ; here he has done so, and it is a valid binding. {The Kimg t. 
Amesby, 3 B. & Aid. 584.) [Williams, J. — How does it appear that the apprentioe 
was bound for more than forty days ?] It is not directly stated ; but id certmm est 
quod cerium reddi potest. [Coleridge, J. — If you look at the covenants bytlis 
master for the yearly payment of wages and other things, I think it sufficiently iqppem 
to be a binding for more than forty days.] Yes, that is clearly so. The Kimg T, 
Wright (1 Ad. & £11. 434) is a strong audiority also to the point, that where by rea» 
Bonable intendment the meaning appears, and there is no necessary ambiguity in the 
construction of a deed, the Court is not bound to create one. (a) The cases of 
Miller v. Trovers (8 Bing, 244); The King v. Wickman (2 Ad. & Ell. 517); 21r 
King v. St. Peter's, Ipswich (Burr. S. C. 91) ; Longden v. Poole (3 Lev. 21) ; IfoiiiU 
house V. Hutchinson (Bunbury, 101), were also referred to in support of the order. 

JR. Hall and Pashley, contrk. — There are two points here : &nt, whether the mino* 
mer is such as to make the indenture not the deed of Joseph ; and secondly, whether J 
there is on the isjce of this indenture a patent ambiguity, as to which parol evidcnoe ^ 
cannot be received. As to the first point, Clarke v. Istead (1 Lutw. 894) is a ^^ 
distinct authority. That was an action of debt upon bond, brought against Robot 
Clarke, for that he, by the name of John Clarke, had by his certain writing obligatoiy» 
sealed with the seal of Robert, acknowledged himself to be held and firmly bound, &c. 
Upon nan est factum pleaded, issue was joined, and the facts being turned into a speciil 
case, in which the bond was set out, it appeared to be in the following form : " Knov 
all men by these presents, that I, John Clarke, &c. The condition of this obligatioBii 
Buch that if the above-bounden Sir Robert Clarke, &c." Signed, " Robort Clailtt.* 
Even in that case the bond was not supported, but the judgment for the plaintiff mn 
reversed in error; and the authority of that decision was expressly recognized in GMI ^ 
T. Barnes (3 Taimt. 504). [Wiohtman, J.— Those cases go to the same point m f 
Maby v. Shepherd (b) (Cro. Jac. 640), viz. that the action ought to be brought aoeoid* - 
ing to the bond.] [Coleridge, J. — In Clarke v. Istead, tiie declaration was, tb(t : 
Robert, by the name of John, bound himself; but that was not so, because he ezecnteA ; 
by the name of Robert.] The obligatory part is, " I am bound," and that was in the ] 
name of John. In this case the word " Joseph " is either material or immaterial : tf 
material, then there is clearly, upon the face of the instrument, a patent ambiguity m 
to the party bound ; if immaterial, then the party is described by a wrong chriiiriMi 
name ; and so the instrument is void. Now it is said that the signature is iinneoeBniy» 
and can, therefore, do no harm. That is still in doubt. In Shepherd's Toochstone^ 
(Preston's Edit.), p. 56, it is laid down, that a seal is essential to a deed, bat i ~ 



J [a) In R. Y. Wright an indictment charged that the commencement of it, it ran that: " Kwm il 

endant, '* at the township of W., on a highway men, by these presents, that I, Bdward, am hdd,*' 

there, leading from a highway leading from the vil- &c., bat that it was subscribed ** Bdmimdy** wfeklh 

lage of W. towards C, to another highway leading was the defendant's true name. Upom amm atfmttmnf 

from the village of W. towards L. by a wall t?^ere, the jury found that it was the deedof tlie damlaaL 

extending into the said highway, by him erected, but the whole Court was of opinion that the pWalia 

had encroached," &c. It was held, that the indict- could not have judgment, because the deeuntlaa 

ment was not uncertain, and that '* /Aere" and was upon a bond by Edmund SheplMrd« aad tka 

** Maid" could be referred only to the highway first evidence was of a bond by Edward Shephetd, sad 

mentioned. the signature was no part of the bond. Nettkar 

(6) That was debt upon bond by Edmund Shep. would the verdict of the jury hdp It ; bat he '^'^ 

herd. Upon oyer of the bond, it appeared that in to have brought his actkm aooonllaf to Iha fa 



IflCHABLBIAB VEBM, ISM. Vtt 

(not; but in 2 Black. Com. 306, it is raid : '' And die stat 29 Car. 2, c. 8, rm?e" 
le Suon custom of aigmng, and especially directs it in all grants of lands, and many 
fter species of deeds ; in which, therefore, signing seems now to be as necessary as 
ading. tiiongh it has been held, sometimes, that the one includes the other ; " upon 
4iidi Mr. Preston observes : " This seems to be a mistake ; for, it is apprehended, the 
latnte is applicable only to mere agreements, not to deeds ; this will appear very dear 
om the words of the statute." And in the case of Cooch v. Goodman (2 Q. B. 580), 
le question was argued, whether it was necessary, by the Statute of Frauds, that a 
Me under seal should also be signed ; but was not decided. Here, however, the 
nnomer is such as to render the deed void. In Roll. Ab. Faits. B. 3, 4, it is laid down 
Mt if J. S. bind himself by the name of W. S., the bond will not be avoided thereby ; 
■t if by a false name of baptism, it would be otherwise. So if one bind himself by a 
ike surname, as by the name of J. S., when his real name is J. D., the bond will not 
e void, but it will estop him, for he may have difierent surnames ; and the Year Book, 
• H. 6, 25 b. 26, is cited for that position. Again, in Comyn*s Digest, Grant, A. 2, 
he same distinction between the Christian and surname is maintained. " The grantor 
■d grantee, regularly, ought to be named by the Christian and surname, or by th^ 
■me of confirmation. But it is enough if there be a sufficient description of the 
^nntor or grantee, whereby he may be known : as by his name of dignity or office ; 
faugh his addition be omitted or mistaken ; though the addition be not true. Yet 
fte person described ought then to be tn rerum naturd ; tmd a mistake of the Christian 
mme shaU not he supplied*' Reference is there made to Title Fait. £. 3, where it is 
■id : "If Edmund executes a deed in which he is named Edward, and he be sued by 
fte name of Edmund, aUas diet.' Edward, &c., he may plead non est factum, and shaU 
■Did the deed, though he subscribes by his true name, Edmund, and though the juiy 
hd that Edmund executed the deed." The Christian name, or name of ^ptism^ is, 
berefbre, the important and distinctive name ; judges must take judicial notice of 
Inutian names. [Colbrzdgb, J. — In the earUer part of tiiis deed, Joseph and John 
Be identified as the same person.] j^osis v. King (Willes, 554) is an authority for 
qring that a man cannot have two Christian names at one and the same time. [Wiobt- 
UMt J. — ^But in that case it was held a bad plea in abatement, that the defendant's 
■rae of baptism was not Henry alone,— «nd for this reason, that he might never have 
iKn baptized.] It is not meant to be contended that a man can have no name without 

but tl» question is, wheUier he has a jn^iper, that is, a distinctive name ; 

doobt may be gabied by reputation. In Rolle's Abridgement, Nosmes 



U HoBMS (B.), many names are enumerated, as being the same baptismal name ; 
Ihb Ficn and PMer are said to be "all one name of baptism ; " but Agnes and Ann 
■e distinct ; and so Isabell and Sibill. The case of WUlitans v. Bryant has been 
Btod as an auth o ri t y upon the other side ; but the conclusion of the judgment there 
^ointi out the distinction between the two cases. Mr. Bazon Ftoke, in ddivering the 
p^ment of the Court, after citing tiie older authorities* said : " It by no means follows, 
krefore, that the decisions in the oase of G^ov/c^ v. Boniei, and otiiera before referred to, 
s wind the qoestion arose on the record, would have been the same, if there had been 
■ avennent on the face of the declaration that the party was known by the proper 
■me in which the bond was made at the time of maldng it. We find no authorities 
or saying that the declaration would have been bad with such an averment, even if 
bne had been a total variance of the first names, still less where a man having two 
toper names, or names of baptism, has bound himself by the name of one. And on a 
ka of mom sstfaehan, where the difierenoe of name does not appear on tiie record, and 
bere 18 evidenee of tiie party having been known, at the time of the execution, by the 
me on tiie instrument, there is no case cited on the argument, and none that we are 
■are oC which decides that the instrument is vend. In Hyekman v. 8hotboU, which was 
itad as «faewingtiiat the variance of name was fatal, on mm estfaehan, the wrong name in 
be bond (Joifan instead of William) is said to have been inscribed by siM^aAe; andthere- 
■c, it is to be presumed, was not a name by "sdiich he was known.** (5M.&W.455.) 
M ao in this case the wrong name was inserted by mistake. [Couebidox, J.— That 
■lyappean by paral evidence ; and if you adnut any evidence in explanation of an ambi- 
;ai^,ywBHMt«diDitaIL] hiHfdmwn v, 8ioHok(Pym, 279,sl,)^ that fact was found 



138 MAGISTRATES' GASES. 

by the jury. In Owen's Reports (Kent v. Wichall, 48), the following point is stated: 
*' Drew demanded of the Court, that whereas Edmund Leusage had bound himself in 
an obligation by the name of Edward Leusage, if this was good or not ; and it seemed 
to the Court quod tion est factum ; and Anderson and Walmesley said expressly that it 
was void ;" citing 34 H. 6, 19 ; Dyer, 279, a. In the case of indictments, the rule is 
very strictly adhered to, that the right Christian name must be given. In Reg. v. 
Stroud (2 Moo. C. C. 270), an indictment for murder of a bastard child, described ai 
Harriet Stroud, was held not to be sustained by proof of a child christened Harriet, and 
only called by that name, though the mother's name was Stroud; for the proper 
description was Harriet. And in R. v. Morris (1 Leach, C. C. 127), where an indict- 
ment charged, that Francis Morris the goods, &c., feloniously did receive, he, " the smi 
Thomas Morris," knowing them to have been stolen, the words, " the said Thomas 
Morris" were rejected as surplusage ; otherwise the indictment would not have bees 
sustained. So a mistake in a Christian name in an Act of Attainder has been held fiitaV 
though every body knew who was intended by the Act ; and every part of the descrip- 
tion exactly suited that person, and nobody else (Foster's Crown Law, 81) ; and an aneit 
imder a warrant, describing the party by a wrong name, cannot be justified, although the 
party arrested was the one intended by the warrant. (Hoye v. Bush, 2 Scott, N. R. 86; 
1 Man. & G. 775.) That was an action of trespass and false imprisonment, to which 
the defendant pleaded not guilty, by statute. At the trial it appeared that a magn- 
trate's warrant had been issued, directing the defendant, as a constable, to take John 
Hoye, charged with stealing a mare. Under that warrant the defendant arrested 
tlie plaintiff, whose real name was Richard Hoye, but who was the party against 
whom information had been given, and against whom the magistrate intended to issue 
his warrant. A verdict was found for the plaintiff; and upon a motion for a new trial, 
the Court refused to disturb that verdict on the ground that the warrant to take Jdm 
Hoye afforded no justification for taking Richard Hoye, though Richard was the party 
meant. Secondly, upon the face of this deed there is a patent ambiguity— 1st, as to the 
term of service ; for, whether for a term of 21 years, or imtil he shall attain the age of 21, 
is meant, it is impossible to say ; whatever way read, it will not be English ; and« 2ndlj» 
as to the person boimd, which is the principal point. Now the rule has been very d»- 
tinctly laid down, that a latent ambiguity may be supplied by evidence, but lliat a 
patent ambiguity may not. (Bac. Max. Reg. 23 ; and Miller v. Travers, 8 Bing. 244.) 
That was a case in which a testator devised all his estates in the county of Limeridc 
and the city of Limerick ; and it appearing that he had property in the city, but none in 
the county, the plaintiff sought to give evidence that the testator intended to pass an 
estate in the county of Clare ; that the words " county of Clare" had been left out by 
mistake, and to shew that the will was to be read as if the word *' Clare" stood in the 
place of or in addition to that of Limerick ; but the Lord Chief Justice Tindal, and 
Lord Lyndhurst, C. B., whose opinions had been required by the Lord Chanc^or^ 
held that such evidence was inadmissible. The case of The King v. Amesbg (3 B. k 
Aid. 584) was cited on the other side ; but in that case, although the indenture stated 
that S. S., the son of S. S., by and with the consent of his said father, did put him- 
self apprentice, the indenture was held invalid, and incapable of confeiiing a settle- 
ment, because it was executed by the father and the master only, not by the 
apprentice. Then the indenture in this case either binds John, or there is a patent 
ambiguity. There are, at all events, only three modes by which this instrument 
could be made operative ; and it is not disputed that, in order to confer a settle- 
ment, there must be a binding by indenture, under 3 W. & M. c. 11. (R. v. Ditd^ 
ingham, 4 T. R. 769 ; R. v. Ameshy, above cited.) First, supposing any evidence to 
be admissible, it ought to have been shewn that Joseph was the only son of John ; in 
that respect, therefore, the extrinsic circumstances would not be sufficient to sup]dy 
the ambiguity. In Lord Saye and Sele's Case (10 Mod. 46), the difficulty was evaded; 
for there the estate passed by livery of seisin, and not by the deed ; except the grantor's 
name, the rest of the deed was sufficiently certain ; and Lord Saye and Sele must have 
been the grantor, because he was a party to the deed ; otherwise, as the Court said, 
" as to him, it would have no effect at all, who yet sealed it. According to the common 
rules of indenture, the words of the deed are the words of all the parties ; but Lord 



BaCHAELMAS TERM, 1844. 139 

Saye is a party, therefore he has granted." A second mode might he to shew, hy 
endenoe. that tlie apprentice was known by the name used. That was the sort of 
e?idenoe given in Williams v. Bryant, and upon that the judgment turned ; but no such 
evidence has been offered in support of thb order. The third mode by which this in- 
stroment could operate would be by estoppel ; but there is no estoppel here, because 
tiie deed is executed in the right name. The general effect of this misnomer has been 
ilready considered ; but in Mayehton v. Lord Palmerston (1 Moo. & M. 6, 2 Car. & 
P. 474), which was an action of covenant by lessor against the assignee of the lessee^ 
an indenture of lease, wherein one of the parties was twice wrongly described, as J. C, 
and twice correctly, as 6. C, in which latter name the deed was executed, there 
was held to be a £&tal variance, the declaration stating the deed to be made by 
J. C. ; the only effect, therefore, is that, as between third parties, there is no 
estoppel. 

Lord Dbvmak, G. J. — It appears to me that the Sessions have done right. Here is 
a deed produced as an indenture of apprenticeship, by service under which the pauper 
u said to have gained a settlement. Then the first question is, whether the pauper^ 
Joseph Beaumont, executed that indenture, and it is proved that he did. He signed^ 
mkd, and delivered it, and has served under it. Upon the face of it, certainly, the 
ioitnunent presents some difficulty, but I think no ambiguity. It is perfectly clear 
that the pauper is the party who executed it ; but then, it is said, the name of John 
ii introduced by mistake in the first part of the indenture, and that creates an ambiguity. 
It is true the apprentice is at first odled John, but it appears further on that Joseph is 
tike person with whom the master contracts ; the description of Joseph, as " apprentice,'* 
m the instrument shews that. It seems to me, therefore, that there is no ambiguity to 
be explained. As to the other point, which was not however much insisted upon in the 
trgument, the terms of the deed are certainly extraordinary : " Until the term of hie 
ittain ages 21 years;" but I think the meaning evidently is until he shall attain the 
age of 21 years. The binding took place in the year 1829, and the period of service 
MS been proved by evidence to have exceeded forty days. All that was necessary, 
tlierefore, has been done. We are indebted to the Court of Exchequer (a) for a great 
deil of learning on this subject, although it was not necessary to their decbion, which 
vould have stood very well on the second ground, that the defence in that case was 
M available under the new rules upon a plea of non est factum. However, that deci- 
iion is in accordance with the present ; the party was there held bound by an instru- 
ment not executed in his proper name ; and if there is any mode by which the appren- 
tice can be bound by the deed, that is sufficient to enable him to gain a settlement. 
This mle must, therefore, be discharged. 

Williams, J. — The real question is, who was actually bound ? because if any 
Krions doubt arises whether Joseph was bound apprentice or some one else, this order 
cnmot be sustained, his binding to serve being a necessary ingredient in gaining a set- 
tfanent ; but, considering the deed altogether, I think he appears to be the person 
Ktnaliy bound. The deed cannot of itself prove the case ; there must, at all events, 
be parol evidence to shew to whom it applies, some person to say " I am the man who 
Cttcuted the deed, and I served under it ;" that is all that is necessary. In the 
itttrnment there is some confusion of names ; but the rest of the Court are of opi- 
lion, and I agree, that the description of the apprentice is applicable throughout to 
ioeeph, and that sufficient appears to refer the binding and execution to Joseph. 
Iliat being so, there is no ambiguity as to the person bound. As to the curiously- 
framed sentence respecting the term of service, certainly, if doubtful English would 
tpoH a deed, the language here used would spoil this deed ; but the intention, though- 
expressed in a singular manner, no doubt, was to bind the apprentice until he should 
attain the age of 21 years; and, independently of extrinsic evidence, my brother 
Coleridge has shewn in the course of the argument, by reference to the covenants on 
the port of the master, that the term of service must have been more than forty days. 
Upon the whole, therefore, I am of opinion, that the order of Sessions was right. 
CoLXBiDGB, J.— I am of the same opinion. It seems to me that this is not a qucs- 

(a) WUUam v. Bryatit, 5 Mee. & W. 447. 



no WLQBTKATEr C48SS. 

turn of ambigoxty ; Hat more propedy a qoMtum of diffienlty of comtructMrn. It mmt 
be admitted diat in all cases of ^is sort some parol evidence must be given. Si^ipoae, 
fsr instance, an instrument executed in tiie name of J(^ Smith, some penon most be 
called to shew that that particular John Smith is the party in the proceeding bdfore Ilia 
Ooort. Here thftt is done ; and in the instrument itself, Joseph Beaumont is described 
as the apprentice ; besides, the words, *' the said Joseph Beaumont,*' must refer to the 
party before named ; and although you find that he has before described faimself as 
John, yet there can be no doubt that the " John " in the first part of the instniment^ 
is the same person as the " Joseph " in the last ; and if so, coMmt depermmd. In die 
other part of the deed, there is certainly very bad English ; a very imperfect eaqpres* 
aion of what the parties meant ; but can we see what t£eir meaning was ? I think wb 
<SBn ; and that the meaning was, that the binding should be until the apprentioe readied 
the age of twenty-one years ; that, however, by itself, would not be enough ; beoami 
the apprentice might then be so near that age, tiiat there would be only an interval of 
forty days, or less ; but the subsequent covenants by the master for the yeaily pi^- 
ment of wages, for sending him to school, and so forth, seem satiafiietorily to shew tint 
the period of service must have been of much longer duration. 

WioHTMAN, J. — On the foce of this deed there are only two parties ; at the end of 
It is the ordinary phrase: " the partieB Bbwe^namedhAve hCTcanto, &c.;" and thenfoDov 1 
two signatures: "Joseph Roberts and Joseph Beaumont." They, therefore, adaat ! 
themselves to be the parties named in the deed; abd that deed could be cnforeel ; 
against the apprentice in two ways. If he were sued by the name of John, he wodd 
be estopped from saying tiiat he was not the obligor ; that was the mode of proceedim j 
referred to in Mah^ v. Shepherd (Gro. Jac. 640), and Hyekmam ▼. ShotboU (Pj% J 
279, a) ; or if he were sued by his right name, and it were averred and shewn ^at he * 
was known by both names, as in the case of WilUame v. BryaU. It seems to ba 
therefore, that the indenture is not void. It mig^ be made good, as against tte 
apprentioe, either by suing him in the name of John, or by an averment tbit he wm 
known by botii names. The only question that renudna is, as to the length of d» 
term of service, and as to tint, I agree with the rest of the Court. 

Onkr mf Semme eotifimil 
A.a.^J.C.8. 



TuM QussN V. Thb IvHABiTAirTs ov TBX pAmisa or St. SxpvLCHmx, Nobthamptov. 

The erammaiionM, upon which an order qf removei ie fbw m ie i, mmet dUelo$e dittineiJf aO tkt fitk 
esBential to the tHtUmmt ; mothh^f mmt be t^ to h^kremeS 

An order qf removal waefnmded ^gwrn thefoUowiag etcamUnmhrnie : — J. P. ttaied thai, **onti^ 2iai 
Juhf, 1839, he M a Aomt, Jiteofe, ife. to T. A., the hmebandqf tkepaaper, at therentqf IttL 
per flnfMmt, oapohmoe qf the parochial ratet ; the eaid T, A. occupied the houee until the 22nd Jwlh 
1842, andpaid him the whoU qfthe rent during that Hme." A. A.^ the pauper, etaied: **m 
July, 1839, my huaband and I went to a houee {deeeribinff it aein the preeioue cjimminuHoa), 1^ 
ionging to Mr, Puiley. We reeided in that houee HU March, 1842." HM, that iheeemnd^ 
motions, tfeujgleient evidence qfa yearly hiring, did not, at all eoenii, ee^fMeaUg ehew an •o e i ys 
tien by T. A. under that yearly hhing ; Coleridge, J., dieeentiente. And per Ooleridpet J^ At 
etatement qfreeidenee wae tmglcient. 

UPON appeal against an order of two justices removing Ann Adams, widow, sal 
her three children, from the parish of Furthingstone, m the county of Northamp- 
ton, to the parish of St. Sepulchre, Northampton, die Court of Quarter Sessions eon- 
firmed the order, subject to the opfauon of tins Court upon the following case :— 

The order of removal was groimded on certain eiaminations ; the material poitioas 
of those oh which any questions arose are the following :*- 

Jacob Potley stated as follows :— '' On the 22nd day of July, in the year I8S9. I 
let a house, situate at No. 10, in Leicester-street, in the parish of St. Sepolehre, in the 
town of Northampton, to Thomas Adams, the husband of the panper, Ajm AduM» ift 
the rent of 10/. per annum, exclusive of the parodual ivtes. The said HuMuaa Adama 
occupied the house until the 22nd day of July, 1842, and paid me the whole of the 
rent during that time.'* 



BlICHABLafAS nXM, 1344. lil 

Ann Adanuf stated as follows : — " 1 was bom, as I have been informed and verily 
believe, in tbe parish of Farthingstone. In the month of August, 1832, I was married 
to Thomas Adams, shoemaker (who at that time resided at Weedon Beck, in tbe said 
eoimty), at the parish church of Weedon Beck aforesaid. In the month of July, 1839, 
Bj said husband and I went, with our two children, Reuben Adams and Mary Adams, 
tDt house. No. 10, in Leicester-street, in the parish of St. Sepulchre, in the town of 
Northampton, belonging to Mr. Putley. We resided in that house until March, 1842, 
fken my husband died. I am now chargeable to the parish of Farthingstone. 
Amongst other grounds of appeal were the following : — 

Fourth, — That the said examinations are defective and insufficient, inasmuch as it is 
not therein stated, nor does it appear therefrom, that the said Thomas Adams rented or 
oecopied the house. No. 10, in Leicester- street, in the said parish of St. Sepulchre, in 
^ said examinations mentioned, or any other house or tenement in the said parish, 
Oder a yearly hiring. 

Fifth, — That it is not stated in the said examinations, nor does it appear therefrom, 
that the said lliomas Adams ever bond fide rented a tenement in the said parish of St. 
SefHilchre, at the sum of 10/. a year, at least, for the term of one whole year, or that he 
aenipied any such tenement, under such yearly hiring, and actually paid the rent for 
ie same, to the amount of 10/. at the least, for the term of one whole year. 

Sixth, —That it is not stated in the said examinations, nor does it appear therefrom, 
Ait the said Thomas Adams resided for forty days or upwards in the said parish of St. 
fiqmlchre, whilst renting and occupying a tenement therein at a yearly rent of 10/. 
m upwards. 

At the trial of the appeal it was objected, on behalf of the appellants, that the 
tnminations were defective for the causes set forth in the foregoing grounds of appeal. 
Ilie Court of Quarter Sessions confirm the order, subject to the opinion of this Court 
« the al>ove objections. If the Court should be of opinion that the Court of Quarter 
Sessions ought to have given effect to the above objections, or either of them, the order 
of Sessions to be quashed ; otherwise the order of Sessions to be confirmed. 

K, Macttulay and A, MUls, in support of the order of Sessions. — There are two 

objections to the sufficiency of these examinations ; the first, as to the residence of the 

pioper, and the second, as to the requisites of a settlement by renting a tenement. 

Upon the first point nothing more is necessary than to read the examination. The 

words are : " We resided in that house until March, 1842." The second objection is, 

that the requirements of the stat. 6 Geo. 4, c. 57, s. 2. are not satisfied by the evidence 

koe given. The statute says : " No person shall acquire a settlement in any parish or 

Unmship maintaining its own poor, by or by reason of settling upon, renting or paying 

pnochial rates for, any tenement, not being his or her own property, unless such tene- 

ant shall consist of a separate and distinct dwelling-house or building, or of land, or of 

both, bond fide rented by such person, in such parish or township, at and for the sum 

rflO/. a year, at the least, for the term of one whole year; nor unless such house or 

Ukiing, or land, shall be occupied under such yearly hiring, and the rent for the same 

lo the amount of 10/. actually paid, for the term of one whole year at the least;" 

aid here the evidence shews a general hiring at a yearly rent ; but probably R, v. 

Tke Recorder of Pontefract (2 Q. B. 548) will be relied upon on the other side ; 

that, however, is not a binding authority for the present case. First, that was not a 

cue sent from the Sessions, but an application for a mandamus; and, secondly, there 

icre two points in that case, of«which the first formed a sufficient ground for the 

decision of the Court, and the second alone is applicable to the present case. There 

vas, therefore, no necessity for deciding that point ; and it can hardly be considered a 

deliberate judicial decision ; but, if it should be so held, the Court is respectfully asked 

to reconsider that case. It seems not to have been sufficiently noticed, that in that 

cne, as in the present, the examination disclosed a letting by the year, at a yearly rent. 

Then the case of R. v. Herstmonceaux (7 B. & C. 551, 1 Man. & Ry. 426) is a d'istinct 

antliority in support of this order. There, a house was hired at twenty guineas a year, 

tie rent to be paid weekly, and either landlord or tenant to be at liberty to determine 

the tenancy at three months' notice from any quarter-day ; and that was held to be a 

icnting of a tenement for one whole year within the meaning of the statute ; and that 

o 



14A MAGISTKATES* GASES. 

the pauper, having occupied the same and paid the rent, for a year, gained a settlement 
Mr. Justice Bayley, delivering the judgment of the Court in that case, said : ** This is 
question on the 6 Greo. 4. c. 57 ;" and after stating the facts and the provisions of tfa 
statute, proceeded : " There is nothing to shew that the words ' for one whole year«* i 
the 6 Geo. 4, require a different agreement from that which is necessary in oommoi 
cases to constitute a yearly taking. * * A taking at an annual rent, though th 
rent is to he paid weekly, is primd facie a yearly tenancy ; if there had been no provi^ 
about quitting at three months' notice, there could have been no doubt on the subject 
as it would then have been an ordinary yearly tenancy, with the rent to be paid weekly 
instead of quarterly or half-yearly. What, then, is the legal effect of a tenancy for i 
year, with a proviso for determining it in the middle of the year ? Such a proviso doei 
not prevent it from being a yearly tenancy ; when the party is tn, he is tn of the 
whole estate for a year, liable to defeasance on a particular event. ♦ » « 

On the like principle, in this case, the taking by the pauper is to be considered a lease 
for one whole year in its creation, although an event might happen by which the 
original interest so created in the first instance would be changed. The event did not 
happen : he occupied the house for a whole year, and paid the rent, which exceeded 
10/., during the same period. He therefore gained a settlement." Again, in Doej, 
Watts (7 T. R. 83), Lord Kenyon, in delivering judgment, said, " So long ago as the 
time of the Year Books, it was held that a general occupation was an occupation from 
year to year." The examination of a pauper need only state the facts which are neces* 
sary to raise the legal inference, and not the legal inference itself. {Reg. y. Pilktngttm, 
3 Gale & Dav. 319.) In that case the settlement relied on was by hiring and servoe; 
and the examination of the pauper stated that he went to work at a certun mill about 
the latter end of the year 1828, and remained in that employment more than two yean; 
that there was a custom in the mill requiring the work-people to give a fortnight's 
notice before leaving their employment ; and that he worked under that custom. That 
was held to be a hiring for a year ; and Lord Denman, C. J., in giving judgment, said: 
" It may be very true, that when the settlement depends upon a simple fact known to> 
the pauper, such as that he resided in a particular parish, or was unmarried and with- 
out child or children, it is reasonable to expect his examination should contain a 
specific statement of that very fact. But it is a very different question whether his 
examination should state the legal consequence of particular facts." Now, here the 
facts are stated — all the facts necessary to raise the legal conclusion. The examina- 
tion in this case is in the same terms as those in which the case of R, v. Herstmoncemr 
was referred to this Court. But it may perhaps be said here, as it was in Reg. v. Tkt 
Recorder of Pontefract, that the terms of the examination are consistent with the sup* 
position that the pauper occupied under a tenancy at will. That may be so under any 
general letting or occupation ; but a general letting or hiring i^ primd facie evidence of 
a letting or hiring for a year. R, v. Banbury (1 Ad. & £. 136) will be referred to on 
the other side ; but that case is quite distinct from the present. There, there were two 
separate hirings for a year, and the occupation was partly under one and partly under 
tlie other. In considering these questions, upon the sufficiency of examinations, the 
nature of the document seems to be too much overlooked. The examinations are 
merely the justices' notes of the evidence given before them when they make the 
order ; and such terms as " averment " and " allegation," used in their technical 
sense, are wholly inapplicable to them. It is quite unreasonable to require, in i 
document so obtained, all that particularity whioh may well be expected in thi 
grounds of appeal, containing, as they do, the statement of his own case by tb 
party himself. 

Miller and P. B. Barlow, contr^. — ^The first objection here is, that there is no evi 
dence of an occupation under the hiring in question ; and that was the objection takei 
in R, V. Banbury (1 Ad. & £. 136). In that case the pauper's husband took a housi 
of one Ward for a year, at the rent of 20/. ; Ward was only yearly tenant at the sam 
rent to a third person ; the pauper's husband occupied for half a year, and paid half t 
year's rent to Taylor ; then there was an agreement between Ward and his landlord 
that the pauper's husband should become tenant to the latter, and that Ward's tenanc 
should be put an end to ; and after that agreement the pauper's hoaband continued t 



laCHAELMAS TERM, ISM. 148 

occupy for more than another half-year ; so that there was a continuous occupation for 
more than a year; but then, as was said by Littledale, J., " the question is, whether, 
ifter this, we can say that there has been, according to the stat. 1 Wm. 4, c. 18, (a) 
ID actual occupation, ' under such yearly hiring,' by the person hiring the premises, for 
tiie term of one whole year ? There has certainly been an occupation for a year ; but 
nn it • under such yearly hiring ? ' " And afterwards : " I think, therefore, that 
il&ough there has been a taking, for at least two years, under Ward, there has been 
BO sufficient occupation ; for there was not a year's occupation under that takmg, and 
the two cannot be joined." This case shews how essential an ingredient the occupation 
under the hiring is in the settlement by renting a tenement. [Colbridgb, J. — Does 
sot that ingredient appear here ? the words of the examination are, that the party 
"occupied the house until the 22nd of July, 1842, and paid the whole of the rent 
during that time ; " and there is only one rent mentioned.] It is consistent with this 
itatement, that there might be a subsequent contract ; and no essential fact must be 
left to inference. (Reg. v. Stoneleigh, 2 Q. B. 530.) (6) lliere Lord Denman said, 
"The Court has required that an examination should state all the facts essential to the 
Ktdement." [Golbbidgb, J. — Equivalent words are sufficient.] Equivalent words 
Bast, of necessity, include all facts essential to the settlement ; but nothing must be 
kft to mere inference. In Reg. v. Wymondham (2 Q. B. 541), Lord Denman, C. J., 
Kid : " I think it would be enough if words equivalent to the words in the statute were 
ated : but, clearly, nothing should be left to inference ; " and in Reg. v. Flockton (2 
Q. B. 535), a statement that the pauper ** went and resided with " W. of F., the 
appellant parish, was held an insufficient statement of the pauper's residence in F. 
[CoLxaiDOB, J.— You must shew that it is possible for this examination to be true, 
and yet that there might be another rent than that mentioned, or no rent at all.] In 
tiie very recent case of Reg. v. Leeds (13 Law J. N. S. M. C. 85. Ante, p. 23), a 
ttttement that the pauper " paid rent during the whole time of his tenancy" was held 
defective, though preceded by a statement of a hiring for a year at a rent of above 
10/. (c) llie second question is, whether there appears any sufficient statement of a 
icsdence for forty days in the appellant parish. The language used is, that the pauper 
•* occupied" or "resided in that house until March" or "July, 1842;" but that 
iffords no evidence of the duration of the residence ; the word " thenceforth," or some 
lodi word, is wanting ; and cannot be supplied by inference. Lastly, is this necessarily 
» hiring for a year ? R. v. The Recorder of Pontefract is a distinct authority for 
Mying that it is not. There the examination was in the words following : " In or 
tboat the year 1828, he occupied a cottage and close of land, belonging to the Rev. 
Bichard Ridley, situate at Leathley, aforesaid, at the yearly rent of 9/., and the above- 
Bentbned blacksmith's shop, at the yearly rent of 1/. lis. 6d., all which said premises 
lie occupied for three years, paid the several rents as they became due, and resided and 
^t the whole of the time in Leathley, aforesaid, in the above-mentioned cottage : " 
ad Lord Denman said: "The statement in this examination does not follow the 
idtnte. It does not say that the pauper rented at 10/. for one whole year, or occupied 
under a yearly hiring. * * The statements might be true, if the pauper had occupied 
ttid paid rent, as stated in the examination, under a tenancy at will." In the course of 
tbe argument upon that case, R. v. Herstmonceaux was mentioned ; and the answer, 
Ukd the proper answer, given to that case was, that it is not now applicable ; because,, 
once the passing of stat. 4 & 5 Wm. 4, c. 76, ss. 79 and 81, the examination must 
Hate the fstcts Uiemselves, as they are to be proved at the sessions, and not merely 
evidence from which they are to be inferred. The respondents at the sessions 
csmiot travel out of the examination ; and the examination ought to exclude every 

(fl) As to this point, there is no difference between could, and went on a certain day, and that he served 

tke two statates 6 Geo. 4, c. 57, and 1 Wm. 4, c. W. in the parish of S. for a certain time, was held 

18 ; both require that the honse or building, or insufficient for not shewing residence, 

lud, shaU be oecnpied, ** under such yearly hiring,*' (c) It may be observed that the decision in Reg, 

for the term of one whole vear. v. Leedt turned mainly upon the absence of the 

{h) In Meg, T. Sitmeleigh, an examination, which word ** the,** or some other word or words to con- 

•tatcd that the pauper was hired to senre W., who nect the rent paid with the previous statement of 

fived in tbt pansh of S., for twelve months at 50s. the hiring. 
mgct; thstlM was Mked to eome as soon as he 

q2 



14i MAOmBATES' GAMM. 

Other settlement but that relied on. Doe v. Watts was also cited in Rejf. t. Tie 
Recorder of Ponie/ract, and R. v. PiUdngtom is not applicable ; there, as in R.y, 
Herstmonceaux, the question was, whether the Sessions had done wrong in finding a 
hiring ; and Lord Denman at the close of the judgment said : " We do not take upon 
ourselves to say the Sessions have done wrong, where there is a sufficient foundation 
for their judgment." Richardson v. Langridge (4 Taunt. 128) is an authority for saying 
that this examination is not inconsistent with the supposition of a tenancy at wilL The 
order of Sessions, therefore, cannot be sustained. « 

Lord Denman. C.J. — I think we are bound to adhere to the former cases, the 
effect of which will be to produce great care in preparing these examinations ; and 
though the strictness which these cases require may sometimes produce inoonyenienoe, 
I believe the evil would be much greater if we were to open any door to inference, 
or to allow any statement of a settlement to be sufficient, which was not out m 
terms. 

Williams, J. — It may be thought that these cases cannot go further without veigw 
ing upon absurdity ; but they are at all events intelligible in this respect ; that it 
must be now known that nothing will be supplied by inference ; the statement of tiie 
settlement must be complete in itself. If indeed we were now to sanction any depir* 
ture from that rule, the Court would be open to the reflection that it was startled it I 
it own doctrine, and was retreating from it ; and to do so would again open the wbak { 
question and make matters worse than before. Here the terms of the holding tie 
omitted ; it is not stated in the examination that the holding was under a yeadf 
hiring ; and that is a necessary ingredient in the settlement. 

CoLERiDOB, J. — I am as desirous as any of the Court of upholding the strict mk 
which has been laid down in construing tliese examinations ; and I see no reason to 
regret those previous decisions. But 1 confess that I am not satisfied with the deci- 
sion of this case, but feel inclined to entertain a different opinion. If the case of 
R. V. The Recorder of Poniefract had not been decided, my opinion would have beoi 
still stronger ; if that case is an authority for the present, then the decision of the reit 
of the Court is certainly right ; but it does not appear to me strictly to govern this 
case ; and then, freed from the authority of that case, it does seem to me that tbese 
examinations state all that is necessary to support the settlement. They state in tfae 
first place a letting, which imports a contract, and that it took place on a particolir 
day ; then, that the letting was at a certain rent, of sufficient amount to satisfy the 
statute ; and that the parties occupied the house until the 22nd day of July, 184S, 
more than a year. Now, I have no doubt that that is a sufficient statement of tbe 
residence ; then come the words, " and paid the whole of the rent during that time;*' 
and I think that " the rent" ought to be understood as and applied to the rent 
spoken of before ; and if so, then there is a residence under a yearly contract of 
hiring, and an occupation for a year under the same contract; for there is but one 
contract and occupation. 

WiGHTMAN, J. — I agree with the majority of tlie Court that the requisites of the 
statutes have not been complied with in this examination. It has been repeatedly' 
held that nothing can be supplied by way of intendment, except that which is neces- 
sarily so supplied ; and that, if any state of things can be suggested consistent witlfc 
the terms of the examination and not within the statute, the examination is baiL 
Now, here the statute says, there shall be a bond fide renting for a year, and an occs^ 
pation " under such yearly hiring," for the term of one whole year at the least ; in^ 
assuming that a yearly hiring is made out, the difficulty I feel is upon the compliaoo^ 
with the latter requisite ; for it seems to me quite consistent with the language of thi^ 
examination that the occupation might have been under some other hiring. 

Rule absolute to quash the Order of Sessunu, 



MICHAELMAS TERM, 184lu 145 

Thb Qtjben v. The Inhabitants op Honlby. 

SettUmeni b^ renting a tenement — Sufficiency qf examination. 

^ enmination, tgfonwkieh an order of removal was founded, stated that, in the year 1821, the 

deponent {the pauper* 9 father) rented and occupied a certain tenement, of the yearly value of 71., in 

the parish qfH,, and paid the rent for several years: and that, ** in 1821, and at the same time 

tkat he so occupied*' the tenement btfore mentioned, ** he also rented and occupied three acres of 

Isnd,'* of another person in the same parish, " qf the annual value of 7/., at 71. rent, which he 

9caipiedfor one year.** 

BtUi, that this examination did not sufficiently shew an occupation qfthe two tenements together for 

I oif whole year, so as to entitle the respondents to give evidence of a settlement by the renting of 

! tkttt two tenements, and that the objection was well taken in the following ground of appeal : 

Tkat the said examination of M, W, shews no occupation or holding by the said M. W, of any 

tenement of the yearly value oflOl. for forty days during the year 1821, in our said township 

sfH. 

IT PON appeal against an order of two justices, removing Ely Wimpenny and his 
} two children from the township of Anstonley to the township of Honley, both 
k the West Riding of the county of York, the Court of Quarter Sessions confirmed 
the order, subject to the opinion of this Court upon the following case :~- 

The examination of Ely Wimpenny, so far as the same is material to this case, was 
H follows : — " I am thirty-nine years of age. I live at Yew Tree, in Anstonley afore- 
aud. I am by trade a clothier. I was lawfully married eleven years ago, the last month 
of May, at the parish church of Almondbury in the said Riding, to my late wife, 
Martha Wimpenny, formerly Martha Haigh, and the daughter of John Haigh, of Long 
Walls, in Anstonley aforesaid, by whom 1 had six children, all bom in lawful wedlock ; 
hro of my said children only are now living, namely, Martin, aged eleven years, and 
John, aged five years ; my said wife died about a year since. I was never an appren- 
fo nor a hired servant, nor have I at any time heretofore ever done any act to gain a 
tetdement in my own right. My settlement is in the township of Honley, in the said 
Biding, in right of my father, Martin Wimpenny, who acquired a settlement in that 
township by renting a tenement, as I have been informed and believe." 

The examination of Martin Wimpenny was as follows : — ** I live at Coching Steps, 
kthe township of Honley, in the said Riding. I am a cloth-miller by trade. The 
above-named Ely Wimpenny is my son ; he was born at Holmfirth, in Wooldale, in 
fte said Riding, and has never done any act to gain a settlement in his own right, to 
tbc best of my knowledge and belief. I am seventy- two years of age, and the last 
ihfie of my lawful settlement is in the township of Honley aforesaid ; thirty-nine 
Jem ago on the 1st of April last, that is, when I was about thirty-three years of age, 
Iwent to live in the township of Honley as a cloth-miller, in the employ of Messrs. 
lu&es Wrigby and Sons, woollen cloth merchants, who resided at Netherton, in South 
Crosland, in the said Riding, but carried on their business in the adjoining township 
of Honley aforesaid, at a mill, called Mill-in-the-Wood, and I occupied and resided 
a a cottage attached to the mill. In or about the year 1814, I removed from Mill- 
A*the-Wood to Coching Steps Mill, which was rebuilt by and belonging to the said 
MosTB. Wrigby ; I then occupied and resided in a cottage at Coching Steps Mill, in 
thich I have lived ever since. In the year 1818, or in the spring of the year 1819, 
I hired, took, and rented a tenement in the said township of Honley, consisting of the 
fced and agistment of a cow, which I purchased, on land belonging to one Abraham 
Todd, situate at Honley Wood Bottom, in Honley aforesaid, which said tenement was 
of the yearly value of 10/., and was held and enjoyed by me, under the said hiring, for 
a year ; during all which time I resided and inhabited in the said towTiship of Honley, 
It Coching Steps Mill aforesaid. In the year 1821, whilst I still resided at the same 
I^ace, I rented and occupied between three and four acres of land at Scot Gate Head, 
in Honley aforesaid, of one John Todd, of Honley Moor, clothier, of the annual value 
of 11., and for which I paid 7/. rent for the same for several years. In the year 1821, 
tnd at the same time that I so occupied the land of John Todd, I also rented and 
occupied three acres of land at Scot Gate Head aforesaid, of one John Bottomley, of 
Meltham Sizen, boiler, of the annual value of 7/., at 7/. rent, which I occupied for one 
year and then gave it up in the year 1822. The Coching Steps Mill aforesaid, which 
I fived in during all tiie time I so occupied the land of John Todd and John Bot< 



146 MAGISTRATES* CASES« 

tomley respectively, was worth 3/. per annum. My son Ely lived with me nntil he 
was nearly eighteen years of age as part of my family ; he then went to live with one 
Joseph Chappell, of High Royd, in Honley aforesaid, where he stayed a short time, 
and then he went to his uncle, Robert Bowers, of Dob, in Cartworth, in the said 
Riding, where he lived until he was twenty ^one years of age, and then became emanciv 
pated by law ; at neither of the said last-mentioned places was my son an apprentice 
or a hired servant ; the settlement of my son Ely is now in the township of Honlej." 

The following were the grounds of appeal : — 

1st. That the evidence admitted by the said justices and contuned in the Bui 
examinations, on which the said order was made, was inadmissible hearsay evidence, 
and ought not to have been received. 

2nd. That the examinations on which the said order of removal was made do not 
contain legal evidence of any facts sufficient to shew that a settlement was eTer 
acquired in our said township of Honley by the pauper's father, Martin Wimpenny. 

3rd. That the hiring, taking, and renting, by Martin Wimpenny, of a tenement, coa- 
sisting of the feed and agistment of a cow, stated on the face of the examination of 
the said Martin Wimpenny, is not such a hiring, taking, and renting of a tenement 
as, with any residence in Honley during the said holding, as the said holding is 
alleged in his said examination, would confer any settlement on the said Maitin 
Wimpenny. 

4th. That the said examination of Martin Wimpenny shews no occupation or hold- 
ing by the said Martin Wimpenny of any tenement of the yearly value of 10/. bt 
forty days during the year 1821, in our said township of Honley, and that the mi 
examination equally fails to shew any such occupation or holding by the said MaitiA 
Wimpenny of any such tenements of the yearly value of 10/. for the space of forty 
days during any other year or years. 

5th. That if the said examinations do contain any statement of such £Eu;ts as sheir 
a settlement to have been acquired by the said Martin Wimpenny in our said townshij^ 
either in 1819, in 1821, in 1822, or in any other year, then that the said examim* 
tions are altogether defective and insufficient to shew such settlement to have been 
derived by the said Ely Wimpenny from the said Martin Wimpenny, inasmuch ts 
they do not shew that at the time when such settlement was acquired by the tui 
Martin, the said Ely was unemancipated, and inasmuch as they also fail to shew by 
legal evidence such settlement to have been acquired by the said Martin before the 
emancipation of the said Ely, which is stated on the face of the said examination to 
have taken place when the said Ely was twenty- one years old. 

6th. That the said examination^ are on other grounds besides those above stated 
bad and insufficient to support the said order. 

7th. That the said Martin Wimpenny did not acquire a settlement in our township \ 
of Honley by any such hiring, taking, and renting of a tenement, consisting of the 
feed and agistment of a cow, in the year 1818 or in the spring of 1819, and by any such ) 
holding of the said tenement and residence in Honley, as in the said examination of '■ 
Martin Wimpenny is mentioned ; neither did the said Martin Wimpenny ever acqoiis 
a settlement in our said township of Honley by any such renting and occupation of 
land of John Todd and John Bottomley respectively, as in the said examination is 
also stated. 

8th. That if the said Martin Wimpenny did gain any settlement in our said town- 
ship by any of the means stated in the said examination of Martin Wimpenny, then 
that such settlement was not derived from him by the said Ely Wimpenny, but that 
the said Ely had at the time of his said father's acquisition of such settlement ceased 
to be a member of his father's family and become emancipated. On the trial of the 
said appeal, the respondents having failed to establish any settlement by the cow tene* 
ment or land belonging to Abraham Todd, the appellants objected that the respondents 
had no right to give any evidence of settlement by renting and paying rent for the 
land of John Todd and John Bottomley, and they relied on the said second, fourth. 
fifth, and sixth grounds of appeal. The Court overruled the objection, and after hearing 
evidence on both sides, confirmed the order of removal subject to the opinion of f^ n 
Court as to the admissibility of the said last-mentioned evidence. If the Court of 
Queen's Bench should be of opinion that the said last-mentioned evidence was inadmis* 



MICHAELMAS TEBM, 18U. 1«7 

nble, then the said order of removal, and the said order of SesBions confirming the same, 
tre to be severally discharged, otherwise to remain confirmed. 

R, Hall and Pickering, in support of the order of Sessions. — Here there are two 

daases of objections in the nature of general and special demurrers ; and the first 

objection is in the nature of a general demurrer ; the fourth ground of appeal, which 

nises that objection, states that the examination " shews no occupation or holding by 

tiie said Martin Wimpenny of any tenement of the yearly value of 10/. for forty days 

duing the year 1821 in our said township of Honley." Now, the evidence upon this 

pant is as follows: — " In the year 1821, whilst I still resided at the same place, I 

RDted and occupied between three and four acres of land at Scot Gate Head, in 

Honley aforesaid, of one John Todd, of Honley Moor, clothier, of the annual value 

cf 7/., and for which I paid 7/. rent for the same for several years. In the year 1821, and 

lithe same time that I so occupied the land of John Todd, I also rented and occupied 

ftree acres of land at Scot Grate Head aforesaid, of one John Bottomley, of Meltham 

Szen, boiler, of the annual value of 7/., at 7/. rent, which I occupied for one year 

aid then gave it up in the year 1822." This examination, therefore, shews a hiring 

aid occupation for a year of two tenements at the same time, they being together of 

the value of 10/. ; and that is enough to gain a settlement. [Coleridge, J. — But if 

coe of these tenements was taken early in 1821 and the other late in 1821, that 

voold not be enough.] That is the question; " at the same time" means " for the 

tsme time." [Coleridge, J. — But the witness does not say when he took either of 

^ tenements.] He seems to be speaking of the facts in their chronological order ; 

tndwhen he says "in the year 1821" as to the first tenement, and "in the year 

1821 and at the same time" as to the second, he must be understood to mean that 

he took the two tenements from the same time exactly. [Coleridge, J. — Why 

ilxmldn't he say that he held both together for one year, if that were the fact ?] He 

ntended to say so, and was so understood. [Coleridge, J. — "At the same time" 

cumot mean for all the same time.] No ; that is not necessary : it is enough if it 

My be understood to mean from the same time. Besides, the ground of appeal 

does not specifically raise this question ; it points to the value of the tenement. 

Pashley and Overend, contrdi, were not called upon. 

Per Curiam. — The objection is fatal and is well taken ; this order must therefore 
k quashed. 

Rule absolute to quash the order of Sessions, (a) 



The Queen v. The Inhabitants of Latchford. 

^ftk-^ttlement — Sufficiency of examination — Disclosing tubtequent tettlement by apprenticeship — 
Admission in grounds of appeal — Effect of costs, 

Mummnation, sent with an order of removal, contained good evidence qf a birth^ettlement in the 
SfpcUmU parish : and also evidence of a service under an indenture of apprenticeship, which was 
fd out, and a residence during the apprenticeship both in the appellant and respondent parish. 
Tke magistrates removed upon the birth-settlement, and upon that the respondents relied at the 
Sessisms. The appellants objected that the examination was insufficient to let in evidence qf the 
Hrth-setilemeni, because it also disclosed a subsequent settlement by apprenticeship ; but the Ses* 
uams overruled the objection, 

fk^^pelUmts had not denied the execution of the indenture in their grounds qf appeal,' but they 
niied tgfon a settlement by apprenticeship under that indenture gained in the respondent parish. 
At the trial they called the pauper to prove the service, and residence under it, but were not pre* 
pared to produce the deed or account for it, and contended that that was not necessary, inasmuch 
as they had admitted it in the grounds qf appeal, and therrfore it was admitted for all purposes; 
but the Sessions held it necessary, and accordingly confirmed the order. 

Qmi a ease submitted to this Court s held, that the Sessions had done right on both points. 

The judgwsemi of this Court upon eases sent from the Sessions is in form, not " to quash** or 
**emijbrm the order of Sessions,** but to discharge or make absolute the rule of this Court; and 
if tie rule be discharged, that has the ^ect qf cof^rming the order, and the parties who have 
bssugki up the order by certiorari are liable to the costs, under 5 Geo. 2, c, 19, s. 2. 

ON appeal against an order of two justices for the removal of Peter Carter, his wife. 
and two children, from the township of Warrington, in the county of Lancaster, 
(a) SeeHev V. Ormesby (4 B. & Ad. 314). 



witb J 
sitd 1 



148 .MAGISTRATES' CASES* 

to the township of Latchford* in the county of Chester, the Court of Quarter Ses* 
sions confirmed the order, subject to the opinion of this Court upon the following 
case: — 

Ihi order appealed agdnst was made upon examinations, of which the following is 
a copy : — 

" County of Lancaster. — Examinations of Richard Carter, Peter Carter, and James 
Cruikshank, touching the place of the last legal settlement of the said Peter Carter, 
of the township of Warrington, in the county of Lancaster, taken, &c. Richard 
Carter, of the township of Latchford, in the county of Chester, on his oath, saith t 
* I am sixty-seven years of age. I married my first and present wife, Mary, forty- twa 
years ago. I have by her, my said wife, a son named Peter, who was bom on the 
24th December, 1816, in the township of Latchford aforesaid; when my said son 
was upwards of eighteen years of age he was bound an apprentice, under a legally 
stamped indenture, for the period and until the full end and term of five years, to Joho 
Gregory, of the township of Warrington, in the county of Lancaster, shoemaker. 
[He then states the execution of that indenture by him, and proceeds.] My said son, 
F^ter, served the said John Gregory, under the said indenture, for upwards of two 
years and ten months, and in the summer months my said son slept in ^e township g£ 
Latchford aforesaid, during such service under the indenture aforesaid ; and my said 
son slept in the township of Warrington in the winter months during his service witb 
the said master, under the indenture aforesaid. My said son Peter served his 
master in the township of Warrington up to and on the 23rd day of December, 1837; v 
and my son Peter Carter, on the evening of the said 23rd day of December, slept and 
resided in my house, in the township of Latchford aforesaid. My said son WM 
twenty-one years of age on Sunday, the 24th day of December, in the year aforesaid* 
and he never served his said master afterwards. Peter Carter (the pauper) is my son* 
and he is now resident in and actually chargeable to the township of Warringtoa ^ 
aforesaid.'" i 

Peter Carter's examination related to the apprenticeship, and was to the same effect^ \ 
adding that he as well as his father had executed the indenture, and that " the ill- 
denture now produced is the one under which 1 was bound apprentice as aforesaid. 
During the time I so served my said master, under the indenture aforesaid, I resided 
and slept at the house of my father, in the township of Latchford, in the county of 
Chester, in the summer months, and on the Saturdiay and Sunday evenings of the 
winter months, and during the remainder of the winter months, for five nights in eadi | 
week, I resided and slept in the township of Warrington, in the county of Lancaster 
aforesaid. I resided and slept in Latchford for more than forty days, during which 
time I served my said master under the indenture aforesaid. I resided and slept ift 
Warrington for more than forty days, during which time I served my said master under \ 
the indenture aforesaid." 

Joseph Worrall (the attesting witness) proved the execution of the indenture. 

John Ghregory also proved the indenture, and service under it, but could not tell dio 
exact period of time when the said Peter Carter left his service. Then followed a com* 
plaint of chargeability by James Cruikshank, one of the overseers of the township of 
Warrington, and an examined copy of the indenture of apprenticeship referred to in 
the examinations. 

The following were the grounds of appeal stated by the appellants ; — 

1st. That the order and examination, of which copies are sent to us, are bad on the 
fiace thereof. 

2nd. That the examination whereon the said order of removal was made was and is 
insufiicient, and does not contain legal evidence of any settlement having been gained 
by the paupers, or any of them, in our said township of Latchford. 

3rd. That in fact the said paupers, or any of them, are not, nor is, and never were or 
was legally settled in our said township of Latchford. 

4th. That the said paupers were at the time of making the said order and still are 
legally settled in your said township of Warrington, by reason of the said panper» 
Peter Carter, having been so apprenticed as in the said examination is stated. wsA 
having served under the said indenture of apprenticeship in the said township of War« 



I 



MICHA£LMA8 TERM» 1M4. M 

rington for more than forty days, and having slept in the said township of Warrington 
for more than forty days during such service, and on the last night thereof, and by 
reason of the said township of Warrington being the last place hi which the said 
pauper, Peter Carter, completed the period of forty days' service and residence under 
the said indenture of apprenticeship. 

The 5th, 6th, 7th, 8th, 9th, and 10th grounds of appeal were directed to the in- 
sufficiency of the examination in not shewing that on the last night of the service the 
pauper slept in Latchford ; and the 11th alleged that the residence in Latchford was 
not in the character of apprentice, or in furtherance of the objects of the appreticeship, 
but by the indulgence of the master only, and therefore gave no settlement. 

On the appeal coming on to be tried, the counsel for the appellants applied to the 
Court to quash the order, on the ground of insufficiency of the examinations to sus- 
tain it or to entitle the respondents to go into evidence in support of it, inasmuch as 
die examinations shewed that a settlement by apprenticeship had been gained by the 
pauper, Peter Carter, either in the township of Latchford, or else in the township of 
Warrington, whereby the birth- settlement of the same pauper mentioned in the exa- 
minations was merged or destroyed, and as the examinations did not shew that the 
aaid settlement by apprenticeship had been gained in Latchford. The Court refused 
the application, and the counsel for the respondents, having proved that the pauper, 
Peter Carter, was born in the township of Latchford, on the 24th December, 1816, 
stated he should rely on the birth- settlement so proved, and close<} the respondents' 
case ; upon which the counsel for the appellants applied to the Court to quash the 
Ofder, upon the ground that the respondents having in their examinations averred an 
apprenticeship of the pauper, Peter Carter, with a service under it, and a residence 
during such service sufficient to confer a settlement either in Latchford or else in War- 
lington, which apprenticeship was admitted, and which service and residence were not 
denied in the appellants' grounds of appeal, the birth- settlement had been superseded or 
destroyed by the settlement by apprenticeship, and that the respondents, having relied 
oo the birth-settlement, had failed to support their order. The Court ruled against the 
application, and called on the counsel for the appellants to go into their case. Tlie appel- 
lants' counsel then called the pauper, Peter Carter, who proved the length of his ser- 
vice with Mr. Gregory, and that, on the night of the 22nd December, 1 837, he slept 
in Warrington ; that he left his master's service on the evening of the 23rd, and Lad 
then resolved not to return. This being the appellants' case, the counsel for the 
respondents contended that it failed, inasmuch as no apprenticeship had been proved, the 
indenture not having been produced or accounted for. The appellants' counsel con- 
tended that the valid binding of the pauper, Peter Carter, to the said John Gk-egory, by 
indenture of apprenticeship, of which a copy was set out in the examinations, having 
been averred in the examinations by the respondents and having been admitted by the 
appellants in their fourth ground of appeal, was so admitted for all purposes of the 
trial, and that the appellants could not be required to prove such binding. The 
Coort found that the said Peter Carter served his apprenticeship with the said Job n 
Grq^ry from the 16th February, 1S35. till the 28rd day of December, 1887, and th at 
ke slept in Warrington on the night of the 22nd of December, 1837, and had slept and 
inhabited in Warrington aforesaid more than forty days while so serving the said Jo hn 
Gregory under the said indenture, and attained his majority and avoided his apprenti ce- 
ihip on the 23rd day of December, in the same year, and that Warrington was the 
place of his last legal settlement acquired under the said indenture ; but the C ourt 
ruled that the fact of the said Peter Carter's having been bound apprentice to the said 
John Oregory was not admitted on the examinations and grounds of appeal so as to 
vender proof thereof by the appellants unnecessary, and therefore confinned the order, 
•abject to the opinion of the Court of Queen's Bench on the following points, viz. 
First, whether the examinations were sufficient to entitle the respondents to go into 
tiietr case ; and, secondly, whether the fact of the said Peter Carter having been 
bound apprentice to the said John Ghregory was not admitted on the examinations and 
grounds of appeal, so as to render it unnecessary that the appellants should prove the 
Elding. . If the Court shall be of opinion that the examinations are not sufficient to 
entitle the respondents to go into evidence in support of the order ; or if the Court shall 



150 MAGISTRATES* CASES. 

be of opinion that the tact of the said John Carter having been bound apprentice to tiie 
said John Ghregory was admitted by the examinations and grounds of i^peal so as to 
render proof of the fact by the appellants unnecessary, then the said order is to be 
quashed ; otherwise, confirmed. 

Crompton, in support of the order of Sessions. — ^The first question is, whether the 
examination is sufficient to entitle the respondents to shew a birth-settlement. Now, it 
is not denied that, upon the examination, a good birth-settlement is disclosed ; but it 
is said that an apprenticeship of the pauper also being shewn, the birth-settlement is 
destroyed. There are several answers to that objection : first, if the parish officen 
could not discover where that apprenticeship gave a settlement, they must remove to 
the place of the previous settlement ; secondly, the magistrates might not believe the 
evidence of apprenticeship, and therefore acted upon the clear evidence of a birth- 
settlement. Still every examination must be sent ; and the omission of any (me ti 
ground of appeal, although it may not contain the evidence upon which the order wis 
in fact founded. R. v. Outwell (9 Ad.& £. 836). (a) There is a case of 22. ▼. Wickkam, 
not reported, in which it was held that justices are not bound to act upon evidence 
shewing a subsequent settlement. [Williams, J. — But the appellants contend that 
not only the justices, but that you also are bound by an examination shewing that the 
birth-settlement was destroyed by an apprenticeship.] We proved a birth-settlement; 
that threw upon the appellants the onus of proving a settlement by apprenticeship, 'd 
they relied upon one. The question is, have they proved it ? How can the ezamina^ 
tions sent with an order of removal bind the party sending them ? they are the act of 
the justices, and the overseers are bound to send them. If they are contradictory and 
irreconcileable, they must all be sent. The examinations, therefore, cannot he^ 
the appellants ; they must prove their own case ; and to do tliat, it was necessary for 
them to produce the indenture of apprenticeship. There may be a hundred questions 
upon the deed, when it is produced. The attesting witness might not be forthcoming; 
and then, unless diligent inquiry after him were proved, no proof of his handwriting 
could be received. (Cunliffe v. Sefton, 2 East, 183.) No admission will dispense widi 
the testimony of the subscribing witness. {Call v. Dunning » 4 East 53.) [Williams, J. 
— ^The examination is no statement by the party: all this about the apprenticeship mig^t 
be blurted out by the witnesses, without any question being put to them on the subject] 
The case of Slatterie v. Pooley (6 M. & W. 664) will probably be cited on the other 
side, but it is not applicable : all it decided was, that a parol admission by a partji 
to a suit is always receivable in evidence against him, although it relate to the contents 
of a deed or other written instrument ; but here there is no admission by a party to 
the suit or proceeding. The respondents have made no admission ; for the statements 
of the witnesses before the magistrates are not their statements. The appellants, there- 
fore, have failed to make out their case, and the order of Sessions must be confirmed. 
Pashley, contrk. — ^The case of Slatterie v. Pooley is a distinct authority for the appd- 
lants, if the examinations bind the respondents ; and the authority of that case vis 
expressly recognized in Howard v. Smith (3 Man. & G. 254 ; 3 Scott, N. R. 574). 
Now the examination is the statement on one side, as the grounds of appeal are tbe 
statement on the other ; and the Court has so treated it in effect ; for all its decisions 
have been directed to enforce a full statement from the parties of the points to be relied 
on at the Sessions. [Colbridgb, J. — How can you narrow the appellants' evidence 
by the grounds of appeal ?] Whatever on the face of the examination is not denied bj 
the grounds of appeal, is admitted by the appellants ; the appellants are estopped \ij 
that admission ; and as an estoppel must be mutual, the respondents are estopped aleo. 
[Coleridge, J. — Can you say, " because I admit an apprenticeship as against myself 
tiierefore you admit it as in my favour ;" that is, in other words, that the appellantcia 
narrow his own proof as he pleases ?] A fact admitted between the parties is admitted 

(a) In R, y, Outwell the remoying magistrates took and only the examination of the three yn% aeoft to 

the examination of three persons, sUting a settle- tbe appellants ; but the Court held that the enat 

ment by apprenticeship in tbe appellant parish. eYidence ought to have been sent, and oa w 

They also took the examination of another person as ground confirmed tbe order of Sessions, quaahiaf 

to the hiring of some land in the respondent parish the original order. See also R, t. 5i^pifoa-iyis* 

before they made their order ; but they made their StWTt 1 D. & Mer. 123, and ante, p. 41. 
order on the examinpition of the three persons alone ; 



MICHAELMAS TERM, 18M. 151 

1 purposes ; otherwise, either party may be taken by surprise* and required to 
that about which it was supposed there was no dispute. [Colbridgb, J. — Sup« 
'. deny your birth-settlement, but admit an apprenticeship, as in my own favour ; 
rou come and rely on your birth-settlement ; and that is well enough ; but how 
3U be prevented from denying the apprenticeship because I admitted it ?] That 
question : in the case of ^. v. St. John, Margate (1 Q B. 252), (a) it was held 
essary for the respondents to prove the execution of an indenture of apprentice- 
the execution not having been denied in the grounds of appeal ; there. Lord 
an, C. J., said, *' The cases which have been mentioned shew that this notice of 
I does not put in issue the execution of the indenture. Where particular facts are 
ed and disputed, all other facts alleged in the examination are admitted." Unless 
ule be acted upon, the greatest inconvenience will follow ; parties will be com- 
to traverse every fact stated in an examination ; and yet a frivolous ground of 
. renders them Hable to the payment of costs. [Colbridoe, J. — ^The examina- 
nd the grounds of appeal are very different. The respondents have no power to 
r the grounds of appeal ; and the whole of the examination i^ required to be sent, 
can the respondents, then, be bound by the examination ?] That applies to the 
point of the case — viz. whether, upon this examination, any evidence of the 
settlement could be received at the Sessions. It was certainly a voluntary 
ig on the part of the respondents, so far as the evidence of apprenticeship was 
med ; they might have taken the evidence of the birth-settlement only. [Colb- 
:, J. — ^They may have inquired into the settlement by apprenticeship, and found 
k failed.] At all events, the respondents are as much bound by the examination, 
arty who uses affidavits is bound by them. In the case of Platel v. Dowse (Am. 
wo documents were referred to in the affidavits used by the plaintiff : in the 
i of the argument the defendant's counsel produced the two documents, that the 
might see their different form ; their production was objected to on the other 
but the Court said, they were certainly at liberty to look at the documents which 
expressly referred to in the affidavits. Then, if the examinations are binding on 
spondents, this order cannot be sustained ; because they preclude the respondents 
^ving evidence of a birth-settlement in Latchford, by shewing a subsequent settle- 
gained by apprenticeship in Warrington ; upon the face of the examinations it is 
that the birth -settlement no longer existed. The case of R. v. Ribchester 
& S. 135) (6) shews that the pauper gained his settlement in Warrington ; he 
is master's service on the evening of the 23rd, intending never to return ; his 
nent, therefore, was complete on that day, and he slept on the night of the 22nd 
irrington. Then the case of R, v. St, Mary, Beverley (1 B. & Adol. 201), is a 
ct authority to shew that the respondents could not go into the birth-settlement, 
it case H. O., the wife of W. O., having been removed to her maiden-settlement, 

n R. V. St. John, Margate, the examination atC, at weekly wages, went, with their knowledge, 
" When I was about fifteen years old I was on Saturdays and Sundays, to R. and slept there, 
ipprentice to J. C, of P. I was bound until and returned to bis work on Mondays, and was re- 
d attain the age of twenty- one years; and ceived by them ; and on the Saturday afternoon be- 
>roduce the indenture, dated 30th Aug. 1821, fore Shrove Tuesday (having the night before slept 
■d by both parties and by my father. The at C.) received his pay, and never returned again to 
ration was 15/. I served the whole time, and the service, and slept that and the following night at 
in my master's house at P. during the same R. ; but on quitting the works on Saturday had not 
,'* The notice of appeal was : ** That the formed any intention not to return, nor had he on 
did not acquire a settlement in P. by reason the Sunday, nor could he fix the time when he de- 
being bound an apprentice by indenture, trrminednot to return: audit was there held that 
0th Aug. 1821, to one J. C, and by serving his settiement was at C, his service having ended 
he said indenture, because the premium of on his quitting on Saturday : Lord Ellenborough, 
id to the said J. C. was a payment made by C.J., saying — *' But here it appears that the ap- 
ish ofllcers of O. R. in the Co. of K., and not prentice, by not returning to his service on the Mon- 
ather of the said pauper ; and that the requi- day, had not left it on the Saturday under the usual 
of the statute made for the regulation and indulgence ; and therefore he must be considered as 
: of parish apprentices then in force were not having broken the contract on the Saturday when he 
id with." Upon this ground of appeal the quitted his masters* works ; and, consequently, FrI* 
idd, that the execution of the indenture was day night was the last night of his residence as an 
id, and that the appellants ought to have apprentice. The settiement, therefore, was at 
iij establishing their objection. Church, where he slept on that night, and not at 
:n R. V. Ribcketter, it appeared that the ap- Ribebcster." 
Bt'who worked and slept at his maatera* works 



upon the hearing of an q>peal against the order of removal, the respondents proved tfait 
the maidea-settlement of H. O. was in the appeUant parish, and also that W. O. wis 
bom in the city of Ipswich, where there were several parishes, but in whidi of then 
did not appear ; and it was held that, as it was incumbent on the respondents to shev 
that the pauper was settled in the parish to which the removal was made, and as thej 
had disproved that by shewing that the husband had a birth-settlement in aome pariah 
in Ipswich, the Sessions ought to have quashed the order of removal. The obaervattooB 
of Bay ley, J., in delivering the judgment of the Court, are of great importanoe. He 
says : " To justify the confirmation of an order of removal, it ought to appear, upcrn the 
evidence adduced by the respondents, that the party removed is settled in the parish t» 
which the removal is made ; if that do not appear, and d fortiori, if the contrary appear, 
the removal cannot be supported. Now the evidence in this case does not prove tint 
the person removed is settled in the parish of St. Mary, to which she is removed, hot 
in one of the parishes in Ipswich. It is argued, however, that as the respondents' wit* 
ness did not know in which of the parishes in Ipswich the settlement was, and had 
proved a maiden-settlement in the appellant parish in the wife who was removed, tfas 
onus of proving, in which of the parishes in Ipswich the husband was bom, was npontfas 
appellant parish ; and that in the absence of such proof, a removal to the wife's maidea- 
settlement was warrantable. We do not concur in this reasoning. ♦ ♦ ♦ 
Upon the ground, therefore, that in this case it appears, upon the respotidentM' evidimt, 
that the husband has a settlement in a parish at Ipswich, we are of opinion, thataremofil 
to the wife's maiden-settlement cannot be supported, and that the order of Sessiona ought 
to be quashed." Here, then, is good evidence of a subsequent settlement by apprentioe* 
^ip, destroying the birth-settlement ; and the Court cannot suppose that the jostioai 
disbelieved it : but, admitting that the respondents were at liberty to rely on the lnrtli> 
settlement, still the apprenticeship was admitted, and the appellants sufficiently profei 
their case, without producing the indenture, or accounting for it. 

Lord Dbnman, C. J. — I have no doubt that the respondents were entitled to go 
into evidence of the birth- settlement stated in the examination in this case ; because, if 
any settlement in the appellant parish appears on the examination sufficiently proved, 
that is a foundation for the order of removal. And the respondents are bound to gite 
the whole examination, taken by the magistrates; that examination may compriae 
statements of many different settlements ; but it is enough for the respondents to ahev 
that there is some one valid settlement in the appellant parish. As to the auppoaed 
admission of the apprenticeship, I am not quite satisfied with what took place. It 
seems to me that there might be some means of informing the appellants what they 
must come prepared to prove. The appellants say, " We adopt from your fxaminatioii 
that indenture, on which you rest ; but we say that the residence was in your pariah, 
and not in ours." I think that it would be better in such a case if the respondents wcae 
to give notice to the appellants, whether or not they were prepared to make the admie- 
aion supposed ; still, I can't say that, in point of law, they are bound to do ao. We 
must look to what the Act of Parliament requires : it requires that the nraminatinn 
shall be sent on the one side, and the grounds of appeal on the other ; but if a commu- 
nication were to take place between the two attorneys, with the view above suggested, 
it would form a good ground for postponing the trial of the appeal, if that became 
necessary. However, as the Act of Parliament is confined to the sending of the exaaBi- 
nation and grounds of appeal, when the respondents have proved one settkment, the 
appellants, if they rely upon any other settlement, must make out their case, and prove 
it in the regular way. 

Williams, J. — I am of the same opinion upon both points. As to the first, it is 
quite a perversion of terms to say that the examination of the pauper is binding apofti 
or in the nature of an admission by, the respondents. It has no resemblaiioe to m 
admission by them ; non constat but that in this case they may have taken the pauper 
to prove only the birth-settlement ; they may have known nothing of any other ; and 
the rest may have been extracted by accident, or have been a voluntary statement of 
the pauper Uien for the first time. If the respondents were not only bound to send the 
whole examination, but were to be taken as admitting every part of it, it would be a 
strange perversion of the doctrine, that a party is bound by his own statement, tbe 



BflCHAELMAS T£BM » 1814. Mi 

txanunatioii being the statement of another, over whom the respondents have no 
control. As to the last point, unless an admission by the grounds of appeal is an 
idmission by the respondents, the appellants in this case should certainly have 
come prepared to prove the indenture ; and if the examination will not bind the 
Rspondents by way of admission, still less will the grounds of appeal. 

CoLBBiDGB, J. — I am entirely of the same opinion. The first question is, whether 
fte re^xmdents were entitled to go into their case : their case was a birth -settlement— 
tad the question was, whether the examinations were sufficient to let in evidence of that 
lettlement. Now, on the examination there was an abundantly sufficient statement of 
I lurth-aettlement ; but then it was said, " you cannot go into that, because the 
anunination goes on to shew a settlement elsewhere by apprenticeship ;" still, the 
Bsgistrates removed on the birth- settlement ; what can the respondents do ? Are they 
lot to be at liberty to prove the settlement upon which the magistrates have removed ? 
Hiey are not bound by every thing that appears on the examination ; it is not their 
statement ; the witness may have said something of his own accord, and, perhaps, 
BJatakenly. On the second point, I saw the doubts in my lord's mind ; but I feel no 
loubt that all the provisions of the statute have been complied with here; and I 
bdieve that, in order to avoid difficulties, the better course is not to go beyond the 
ttatute ; bat to see what the legislature has provided for securing full information to 
both parties, and to adhere strictly to that. The respondents are bound to send to the 
appellants the whole of the examination ; and it can't be said that they are bound by 
^1^ Then the appellants send their grounds of appeal. In them they may admit what- 
ever they please ; but they cannot compel the respondents to do the same. If they could, 
IsmsaJsfied that it would lead to a great deal of trickery ; because, if, for instance, they 
vere conscious of fatal defects in an indenture necessary to their case, they would admit 
it in their grounds of appeal, and take issue on the residence. That may not be the right 
lobtion of the present case ; but if the argument of Mr. Pashley were admitted, it 
wwld be very likely to occur. 

WioHTMAN, J. — It seems to me too dear to admit of an argument, that this exami- 
Mtkm is sufficient to let in evidence of a birth- settlement ; the statement in the case 
■ : " The counsel for the appellants applied to the Court to quash the order, upon the 
ptHmd that the respondents having in their examination averred an apprenticeship of 
<k pauper," &c. ; but the answer is, it is no averment of theirs ; it is only this — 
^ the pauper having established a birth-settlement, goes on to say something more. 
Aat can't be binding on them ; still less can any admission or statement in the 
fUBonds of appeal. 
PoMey then applied to the Court not to confirm the order, but simply to discharge 
k rule. The effect of confirming the order would be to subject the appellants to 
^Biti, from which he prayed the Court to relieve them in consideration of their hav- 
if been misled. 

LoBD DsNif AK, C. J. (after consulting the Master). — I find that, according to the 
fnctioe of the Court, we can do nothing but discharge our own rule. By the 5 Geo. 
% e. 19, s. 3, it is provided that those who bring up orders of Sessions by certiorari 
""diall enter into a recognizance with sufficient sureties before one or more justices of 
&e pe»ce of the county or place, or before the justices at their General Quarter 
Sesswos or General Sessions, where such judgment or order shall have been given or 
aide, or before any one of his Majesty's justices of the Court of King's Bench, in the 
SBm of 50^., with condition to prosecute the same at his or their own costs and charges 
tnth effect, without any wilful or affected delay ; and to pay the party or parties in 
nlKMe fvvDQr or for whose benefit such judgment or order was given or made, within 
file Bionth after the mid judgment or order shall be confirmed, their full costs and 
dHogw,*' &c. ; bat that does not vary our proceedings, because, when the rule is dis- 
clMrged,tlHit oonfirms the order, and if the effect is to confirm the order, the consequence 
m to coata will attach. It must, therefore, be fully understood, that those who bring up 
«den ai SewinM l^ certiorari, do it at the peril of incurring all the costs. 

Rvle discharged. 



154 MAGISTRATES* CASES. 

Thb Qubbn v. Lawrence Humtbb. 
Obsiructing highway — Conmetion, — Aneieni market. 
The Court of (lueen^s Bench refused to quoth a conviction under 5^6 Wm. 4, c. 50, «. 78,>br of- 
ttructing a highway by leaving an empty cart thereon: although, on the part qf the dtfemdant, H 
waa shewn that the place in question was within the precincts qf a market immemoriaily atiaUiskii; 
that for upwards qf forty years, and as far as living memory extended, empty eartSf prmdpaUy tf 
persons putting up at a certain public- house near the market, had, on market days, been drawn tp 
in a row in the place in question, and remained there during the whole of the market dig 
(no stallage or payment being charged in respect of them), without any hindrance or imierruptim 
(except in the year 1836, when regulations prohibiting that practice were adopted, which, koweper, 
4fter that period, gradually ceased to beet^orced), and without regard to the question whether they 
had or not brought goods for salein the market, or whether the owners or persons placing the carta then 
were attending the market or putting up at the said public-house ; and that although the hcue in quo 
was used as a highway on market and fair days, when not actually obstructed by such carts, get 
the drfendanVs cart did not obstruct the same to any greater extent or in any other nuatner then 
was ueual on market days, 

UPON appeal against a conviction by two justices of the borough of T^gan, under 
Stat. 5 & 6 Wm. 4, c. 50, s. 78, whereby Lawrence Hunter, being the driver of 
a certain cart on a certain highway, to wit, Standishgate-street, in the said borougb, 
was convicted of leaving the said cart on such highway so as to obstruct the passage 
thereof, and was fined one shilling for the offence, the Court of Quarter Sessions con- 
firmed the conviction subject to the opinion of this Court upon the following case :— 

•* The borough of Wigan, in the county of Lancaster, is a corporate town, by pre- 
scription ; from time immemorial a market for the sale of fruit, vegetables, &c., has been 
holden there every Friday in a street in the centre of the town, cfdled the Market-plaoe, 
and in the upper part of a certain other street, leading out of the said Market-place, called 
Standishgate-street, which is one of the approaches to and adjoins the said Market- 
place. The rector of the parish of Wigan, as lord of the manor, is the owner of tiie 
soil of the said streets, which are thoroughfares aud public highways, subject only to 
the right, if any hereinafter appearing, to obstruct the same on market days and during 
fairs. ITie rector of the parish and the corporation of Wigan are owners of the 
market ; persons bringing articles to the said marL lor sale have been immemorially 
accustomed to arrange such articles, under the direction and supervision of the market- 
lookers and toll-collectors, in a row on the west side of the said street, leaving reason- 
able and sufficient room in the rest of the said street for carts and other vehicles to 
pass and repass, and behind the said row for foot passengers to pass and repass ; in the 
Market-place, which is generally wider than the Standishgate, Uiere have been usually 
on market and fair days several of such rows ; the articles for sale are, in some in- 
stances, placed on the ground, in others on stalls, and in others, and more especially 
in the said Standishgate-street, in the carts and other vehicles in which they have bear 
brought to market. Certain small sums are in all instances due and paid to the cor- 
poration of Wigan, by \vay of tolls, by the persons selling goods ; goods brought for sale 
to the said market have been from time immemorial, without any interruption or hin- 
drance whatever, exposed for sale, in carts drawn up in a single row, on the west side 
of the said Standishgate-street, the back of such carts being towards the footpath and 
the shafts projecting into the carriage-way, at right angles with the footpath ; the 
horses are sJways taken out of the said carts and vehicles. On the east side of the said 
upper part of the said street, called Standishgate, is a public- house, much frequented 
by country people attending with their carts and horses the said market. This public- 
house has not attached to it any yard or other prtu ises for the standing of carts; 
empty carts, principally of persons frequenting and putting up at the said public-house* 
have, on market days, for upwards of forty years and as far back as living memoiy 
extends, been drawn up in a row on the east side of the said street, die honea 
taken out and the carts reared up, with the back part leaning on the footpath and the- 
shafts upwards, without any hindrance or interruption, except as hereinafter men* 
tioned, but without any express license or direction from the lord of the manor, or 
the market-looker or other person ; between the row of empty carts on the east aide 
of the said street and the row of carts, with articles for sale, on the west side, a space 
of about nineteen feet, has been always open for the passage of carriagea. Cominodi* 



mCHAELMAS TERM, 1814 155 

^es have been occasionally, and from time to time, exposed for sale, as weU in carts as 
m baskets, on market days, on the said east side of the upper part of the said street^ 
and toll in respect thereof demanded and paid, in like manner as for commodities 
exposed for sale on the west side of the said street and in the said Market-place ; and, for 
tile purposes of this case, the place where the cart of the appellant, as hereinafter men- 
tiooed, was placed, is to be considered as within the precincts of the market for the sale 
of marketable commodities ; carts, so drawn up and placed on the east side of the said 
itzeet, have, for the full period of forty years and as far back as living memory extends^ 
lemained there during the whole of the market day, without any person to attend to or 
like care of the same, and without any hindrance or interruption, except as hereinafter 
mentioned, and without regard to their having or not brought goods for sale in the said 
market, and without regard to whether the owners or persons placing the same there 
-were or not attending the said market, or did or not put up at the said public- house ; 
bat the part of the said street, where the said carts have been so placed, is used by the 
public as a highway on such market and fair days, when not actually obstructed by 
•nch carts ; no stallage or other payment is collected or charged for the standing of 
empty carts in the said Standishgate- street, or in any part of the said market. In the 
year 1836, during the mayoralty of John Speir Keron, Esq., the police and market- 
lookers, acting, as they supposed, by the direction of the lords of the market, but 
which were not produced or proved, enforced for about nine months regulations^ 
vhereby, amongst other things, no carts were permitted to be placed on the easterly 
fide of Standishgate-street aforesaid ; but such regulations, after that period, gradually 
cased to be enforced as to the placing of empty carts on the easterly side of the said 
street. In the Market-place there is, and has existed for a great number of years, a 
nnge of flags or stones, called the Fish Stones, being about four feet wide and about 
ten loDg, on which fish are exposed to sale every market day, and often more fre- 
quently ; the sellers of fish pay toll to the collector. The space behind the Fish 
Stones is used by foot passengers ; that before tbem by carts and other vehicles and 
attic. On the 8th day of December, A.D. 1843, being market day, Lawrence 
Hnnter, a farmer of Parbold, in the said county, drew up his cart on the east side of 
& said upper part of Standi^^><te-street aforesaid, opposite to the said public- 
kNtte, having in his said cart articles brought to the said market to sell, and such as 
ire osually sold in the said market. The said Lawrence Hunter sold some part of such 
ntides from his said cart on the east side of the said Standishgate-street. He took his- 
kne from the cart and put the same in the stables of the said public-house, and 
lODoved frt>m his said cart, for the purposes of sale in the said market, the residue of 
tbe said articles, and left his cart as an empty cart, reared up in manner aforesaid, on 
tk east side of the said street, called Standishgate-street, opposite to the said public- 
liOQse ; the said cart did not remain so drawn up for a longer time than during the 
eootmuance of the said market. The cart did, during the time it so remained in the 
aid street, reared up and empty as aforesaid, in fact, obstruct the highway there, but 
aoC to a greater extent or in any other manner than had been usually done by carts- 
tibere on market days as aforesaid. For so leaving his cart, Lawrence Hunter was 
eonricted by the justices of the borough of Wigan, under 5 Sl 6 Wm. 4, c. 50, 
I. 78, and, upon appeal thereon to the Court of Quarter Sessions holden in and for the 
«id borough, on the 22nd day of January, 1844, the Recorder of the said borough 
eonfirmed tbe conviction, subject to the opinion of the Court of Queen's Bench on the 
iiiRgoing case. If the Court shall be of opinion that the said Lawrence Hunter had a 
Itffl right to place and leave his <Vlaid cart in the said highway, obstructing tbe same 
in manner and under the circumstances above mentioned, the conviction is to be 
qinashed ; but if the Court shall not be of that opinion, then the conviction is to stand 
confifuied. 
A rule sm was accordingly obtained to quash the conviction. 
Crm^tim, in support of the order of Sessions. — No such right as is here claimed 
cm exist. Tbe question is, whether the Queen's highway may be made a standing- 
pbee for carts? No length of usage could warrant such an obstruction; it is a 
Bumice at oommon law, and the d^endant is at all events rightly convicted under 
Ik nutate. 



156 MAGISTRATES' GASES. 

Cowling, contrk. — The case ought to go back to be restated ; it does not p ropef ly 
disclose the evidence of immemorial usage ; which was remarkably strong. [Lobv 
Denman, G.J. — The question may be tried upon another indictment.] The evidenoe 
is most important to a correct decision in the present case. In 12. v. SwtUk (4 E^« 
111), which was a very similar case. Lord Ellenborough said. "That after twenty 
years' acquiescence, «nd it appearing to all the world that there was a fair or nuute 
held there, he could not hold a man to be criminal who came there under the belief 
that it was such a fair or market legally instituted. If the fair or market was not i 
legal one, the party might be proceeded against for usurping the franchise ; but it 
being enjoyed as a public fair or market for twenty years, that, in his opinion, ww 
an answer to the criminal part of the charge, if the market had been used without 
interruption." 

Lord Denman, C.J. — ^The case may go back for the Recorder to amend it, if he 
thinks proper, by stating that what is complained of against Lawrence Hunter hH 
been immemorially practised ; if not, the rule will be discharged. 

Rule discharged accordingly, unless the Recorder should think proper to alter tk 
case, (a) 
JB. 



EXCHEQUER CHAMBER. 

Rowley v. The QnEBN,(6) at the relation of SifiTH.(r) 

Municipal Corporation — Election qf CouneillorM, 

Qtutre, whether, under the Municipal Corporatiom Act, ordinary and extraordinary vacaneim k 

the office of councillors can be supplied at the same election 7 
But held, at all events, that where one election took place /or three ordinary vacancies qf couneilbin§ 

and also for an extraordinary vacancy, and the voting papers did not distinguish the eendiMi 

whom the voters intended to supply the extraordinary vacancy, such election, for umni qfsuehdih 

tinction, was void, 

THIS was a bill of exceptions tendered, by the direction of Tindal, C. J., at die trill 
at Stafford of a quo warranto information, in July, 1842. 

The information was filed at the relation of William Smith, of the borough and Otf 
of Lichfield, wine- merchant, and charged the defendant, Thomas Rowley, with usuqMOff 
the ofiSce of a councillor of the said borough and city, and the liberties, privileges, m 
franchises thereto appertaining ; and it set forth, inter alia, that within the said 
borough, according to the Municipal Corporations Act, there ought to be one mayor, 
six aldermen, and eighteen councillors. 

The Plea stated, that before the first election under the Municipal Corporations Ad; 
viz. on the 7th of November, the borough was duly divided into two wards, one the 
north, and the other the south, and that of the 18 councillors of the borough, 9 wen 
duly assigned to each ward ; and that on the 1st of November, 1838, one- third part of 
die councillors assigned to the south ward went out of office, and a fresh election wtt 
duly held ; and the presiding; alderman and the assessors did duly examine the voting 
papers, and declare the said Thomas Rowley duly elected according to the said Act,m 
Rowley took on himself the said office, and so continued till the 1st of November, 184li 
when he went out of office, and was re-elected as after mentioned ; and on the 2nd of No- 
vember, 1840, three of the councillors of the south ward went out of office, and WilHstt 
Taylor was duly elected, and took on himself the office ; but afterwards, viz. on the SM 
of March, 1 841 , he left the borough, and continued absent for more than six months at oM 
time ; whereupon, on the 30th of October, his office was declared void ; and that an extm* 
•ordinary vacancy having so occurred, the presiding alderman fixed a day for an election to 
supply it, viz. the same day on which the ordinary vacancies were to be supplied ; arf 
that on the first of November, 1841, one- third part of the counciUors, &c., went out. 
Rowley being one, and an election was held of three to supply those vacancies, and of 
one to supply the extraordinary vacancy. The plea then averred that Rowley vim 

(a) The recorder hat declined to alter the case. (c) Reported by A. A« FftT, Esq., 

(*) See 3 a.B. 143, and Law J. vol. 90, p. 196, law 
ior the judgment on the motion for the information. 



MlOf AKT,MA8 XEBM, 1844. \m 

ily qualified, and was a candidate to be re-elected to supply the office of councillor ; and 
At at such election the burgesses, well knowing Rowley to be a candidate, did re-elect 
m to be a cooncillor ; and a majority of the burgesses entitled to vote did then deliver 
» the presiding alderman and assessor their respective voting-papers, containing the 
imes and places of abode of the persons for whom they voted, and signed with the 
line of the burgess voting, &c. ; and the said voting- papers were, duly examined, and 
owley declared duly elected, who accordingly took on himself ^e office, as it was 
wfiil to do ; wherefore, &c. 

The Replication, in answer, averred, 1st. that the burgesses of the south ward did 
It duly re-elect Rowley a councillor, as in the plea alleged ; 2nd, that a majority 
ititled to vote did not deliver their voting-papers according to the Act ; 3rd, that the 
"esiding officers did not declare Rowley one having the greatest number of votes, and 
ily elected. The record then stated the evidence adduced at the trial of these issues ; 
lata public meeting of the burgesses was held some days before the election to ascertain 
he candidates, when three were proposed to fill the ordinary vacancies, and in half 
a hour after, a fourth was named to fi^ the extraordinary vacancy left by Taylor ; that 
be elections for the four vacancies were held, and voting- papers delivered as in the plea 
nentioned ; and that each paper contained the names of four candidates as the persons 
rated for — viz. in the form following :— 

1841. Southward. 

{Frederick Bond, Butcher-row, attorney-at-law. 
Thomas Rowley, Tamworth-road, physician. 
William Edward Vale, Bow-street, clock -manufacturer. 
William Gorton, Lombard-street, builder. 
The record then stated that the Lord Chief Justice Tindal told the jury that the 
presiding officers ought to have obtained the information which enabled them to de- 
clare that the defendant was re-elected to his own place, and not to supply the place 
if Taylor, from the voting-papers alone, and thereupon the counsel for the defendant 
Koepted to the direction of the Chief Justice, insisting that if they had informed 
hemselves by any other means that the defendant was a candidate for re-election to the 
>ffice vacated by himself, and not to supply the place of Taylor, and that the burgesses 
Dtew that fact, and delivered their voting-papers with that knowledge, the papers were 
efficient. The record concluded by stating the findings of the jury, which were all in 
kvour of the Crown, under the aforesaid direction of the Lord Chief Justice. 
Gray now appeared in support of the bill of exceptions. 

/. W, Smith, contra. — He contended that the ruling of the Lord Chief Justice was 
Wrong, as it was not necessary to distinguish in the voting-papers which candidate was 
to fill the office of Taylor. It was sufficiently certain to the returning officers by the 
proposal of the candidate ; and according to Reg, v. Brightwel (10 A d. & £11. 171) 
iiat would be sufficient at the common law. The 32nd section of the Municipal Cor- 
XffBtions Act, 5 & 6 Wm. 4, c. 76, prescribed particularly the mode in which the vot- 
Dg-papers should be made out and delivered, and all those requisites had been 
omplied with. Unless the law would imperatively require the distinction now con- 
ended for as esssntial, it could not be added to the express language of the Act. But 
o such Imperious necessity existed. It was competent to the voters to prepare a list 
f candidates ; and then the voting-papers would be rendered sufficiently certain by 
eference to the list. The 1 Vict, c. 78, s. 11, repealed the previous provisions of the 
Municipal Act. s. 47, by which no extraordinary vacancy was to be filled up when 
bere are two-thirds of the councillors remaining at the time ; and the 11th section 
iroceeded to enact that •' every election to any extraordinary vacancy, either alone or 
ogether with other councillors, which shall have been had on the let of November 
BSt, ahall be valid, although the number of councillors did then exceed two- thirds of 
he whole council, and although such vacancy may have happened more than ten days 
ireviously to such day, if in other respects such election had been duly had." This 
iranch of the clause was, of course, retrospective, but what immediately foUowed must 
le taken as prospective, and giving a rule for all future elections in municipal corpor- 
laons under the circumstances therein mentioned. "And the councillor elected by 
he smallest number of votes at such electbup if elected with other councillors, shall 



I5B MAGISTRATES* CASES. 

be the councillor elected to supply such extraordinary vacancy ; and in every case ia 
which more than one such extraordinary vacancy shall be so supplied, the councillor 
elected by the smallest number of votes shall be taken to be elected in the room of 
him who would regularly have first gone out of office, and the counciUor elected by 
the next smallest number of votes shall be taken to be elected in the room of him who 
would regularly have next gone out of office, and so with respect to the other." This 
provision gets rid of all difficulty ; it assigns the place of the candidate who is to fill 
the extraordinary vacancy, and makes the necessary result of his position at the 
bottom of the poll ; therefore there was no occasion to distinguish the names of the 
candidates for each office, as the votes would only have to be counted. 

But the Court, without calling on /. W. Smith, on the other side, immediatdj 
affirmed the judgment below, holding that the 11th section of the 1 Vict. c. 78, wu 
clearly retrospective altogether ; and that the voting-papers must distinguish, as in 
verbal voting, which office each candidate is intended by the voter to fill ; and a stroog 
doubt was expressed by some of the judges, in the course of the argument, whether 
«uch extraordinary and ordinary vacancies could legally be supplied by an election. 

Judgment affirmed. 



ROLLS COURT. 

June3, 28, and 29; July 1 ; Nov. 13, and Dec. 17, 1844. 

Attornbt- General v. Matoe of Poole, (a) 

'Municipal Corporations Act (5^6 VTm. 4, c. 76), construction qf— Removal — Corporate of^ 

Compensation. 
The appointment of a new town clerk amounts to a removal of the old, under the Act, though tUfX^ 

one does not offer himself for re-appointment , or take any steps for that purpose. 
Any office held by a town clerk which is appendant or appurtenant to, or usually held with, the offe^ 

of town clerk, though not a corporate one, is an office for the loss qf which compensation is to h^ 

allowed under the Act. 
The five years for which the account of profits, 8fc. of any office is to be taken, are the five years im^ 

mediately preceding the passing qf the Act {9th September, 1835), and not the five years pi utii t0 

the 1st of January, 1835. 

THIS was an information filed by the Attorney- General on the 11th of November^ 
1837, at the relation of the Hon. William FVancis Spencer Ponsonby and othen^ 
rate-payers of the borough of Poole, against the Mayor. &c., of Poole, and Hiomii^ 
Arnold, and Robert Henning Parr ; and it prayed a declaration that the defendants 
R. H. Parr, having voluntarily resigned his office of town clerk to the corporation, wi9 
not entitled, under the Municipal Corporations Act, to any compensation in respecfr 
of such office ; and that the town council had not, under the Act, any authori^ to 
award him any compensation in respect thereof; but in case it should appear, or die 
Court should be of opinion that R. H. Parr did not voluntarily resign his said officii, 
but was removed therefrom by the corporation, then that it might be declared that^ 
according to the true construction of the Act, he was entitled to compensation in 
respect of his office of town clerk only, and not in respect of any other offices held bf 
him, and that the town council had no right to award him any compensation in respect 
of any other office ; also, that 4,500/. was improperly and illegally awarded to Pur, 
for the town clerk's and other offices ; and that a bond given to Parr for that amount 
should be cancelled, or else stand as a security for what he might appear to be entitled 
to; also, that a rate made on the 2nd and 3rd of January. 1837, might be declared 
illegal and set aside or modified ; and that Parr might be directed to refund to thett 
two instalments of the rate paid to him, and restrained from demanding the 4,500/. 

The information stated that Parr was appointed town clerk in 1833, and also deric 
of the peace, and several other offices were also held by him ; that on the let of 
January, 1836, he resigned tlie offices of town clerk and clerk of the peace, andHunoM 
Arnold was elected to the former office, and on the 1st of July following, to the latler; 

(a) Reported bj J. MACAfLAT, Esq., B«Rlfltcr*aMaw. 



MICHAELMAS TERM, 1844. 150 

it on the 4tli of August, 1836, F^ut sent in his claim for compensation, under the 
t» to the amount of 4,835/. ; and that such claim included the profits derived from 
t office of clerk of the peace, and other offices, besides that of town clerk, for which 
[7 he ought to claim ; that on the 5th of October, 1836, one- third of the town council 
m present objected to the claim on account of Parr's resignation, and the further 
isideration of it was adjourned from time to time, till the 23rd of November ; that 
the meantime the burgess-roll was revised, and eighty persons previously excused 
iTC put on, their rates being paid by only the agent of Parr, and two- thirds of the 
irn council being then on the Tory, or Mr. Parr's side, the award was made and the 
nd given. A rate was then made, and two instalments of it had been levied. It 
a now sought to get rid of the claim in whole or to part. 

Various proceedings respecting the sum in question took place, which it is not neces- 
ry here to state. The money was ultimately ordered to be paid into court ; and the 
itter now came on to be heard as to Parr's claim under the Act. 
Kinderaley (with \AmFollett). — The evidence as to voluntary resignation is conflict- 
g. It is not necessary to make a formal resignation ; Parr being present on the Ist of 
moary, 1836, and taking no steps to have himself re-appointed, but tacitly assenting 
I the appointment of Arnold, is a resignation. [The Master of the Rolls. — Your 
'gament is, that if the town clerk is quiescent, there is an understanding or an 
Tangement that he is to resign ; and therefore there is no compensation to be given 
nder the Act.] Compensation implies something advantageous taken away ; now 
lis could not be of any advantage to him, for he could not, by the Act, hold the office 
f clerk to the magistrates and also clerk of the peace, and was obliged to elect. Parr 
imself admitted this before a committee of the House of Commons. [It was the Act 
f Parliament took away the one he could not hold ; therefore he could not conserve 
Km all.] Some of the offices for which he has received the compensation are not a 
roper subject for compensation. Foot, his predecessor, did not hold the office of 
oder-sheriff till some years after his appointment ; and though it was the practice to 
old the others, it was not a necessary consequence of being town clerk. Besides, 
nreral of the officers are not corporate officers, and the Treasury Minute drawn up on 
lis point speaks expressly of " corporate offices." Then the whole matter was pre- 
ncerted between Parr and the corporation, and it was arranged that he was to resign 
id get the compensation in fraud of the rate-payers. The adjournments of the con- 
mtion of the claim were made fraudulently to ^t the burgess roll in such a state 
to get more than two- thirds of the town council in favour of it, so as to prevent an 
ipeal to the Lords of the Treasury under the Act. 

Teed (with him Dickinson) for the Corporation of Poole, on the subject of compensa- 
n, dted Rex v. The Mayor of Bridgwater (1 Nev. & P. 466) ; Reg. v. Mayor of 
wwich (8 Ad. & Ell. 633) ; Reg. v. Mayor of Carmarthen (3 Per. & D. 35 ; 1 1 Ad. & 
9), Ac, &c. 

Tmmeriyn^ him Freeling).^AXi the witnesses of the informant, except three or four, 
re subscribed to a fund for prosecuting this suit ; and one question is, whether they 
\ competent witnesses, or their evidence admissible. (Nockells v. Crossly, 2 Bar. & 
. 814.) But supposing it admissible, their declarations are to facts not charged in 
i bill, and not in issue, and as to their understanding and behef only. One of them 
iaks of the general " notoriety" of the matters in reference to Parr, but nothing of 
\ kind is in the bill. Such evidence should be rejected. (Shepherd v. Morris, 4 
tv. 252 ; Hall v. Maltby, 6 Price, 215 ; Mulholland v. Kendrick, 1 Beattie, 277, 1 
jDoy, 359 ; Austin v. Chambers, 6 CI. & Fin. 1.) [The Master of the Rolls.-- No 
abt, if there be a declaration, and no charge in the bill to which it may refer, it is to 
rejected ; but the difficulty is, where a declaration is made, and is said to be a 
nidation for inquiry, not of itself, but from its connection with other facts.] As to 
ud, there was no such thing. The 80 persons put on the roll were in the same cir- 
Bstanoes as other persons on it, and the magistrates had no right to strike them off. 
to volnntary resignation, so feur from there being any thing of the kind. Parr would 
ihsLwe succeeded against Arnold it he had offered himself, because Arnold had much 
jer funily interest, &c. [The Master of the Rolls. — It was imperative to elect, 
re was no surrender of the office by Parr, and the only resignation was the not offer- 



liil MAGISTRATES* CASES* 

^ hiintelf at the election.] Just so. As to the offices not heing corporate offioo^ 
Ihat i« not at all necessary ; all that is required is, that they be held with or appurte* 
uaut to a corporate office, which these are, except, perhaps, as to one of them. (jRcy. 
¥. i*0Qie. reEthtfords, 7 Ad. & £U. 730 ; Reg. v. Mayor of Norwich, 8 Ad. &EU. 635; 
ft. V. Mayor of Bridgwater, 6 Ad. & £11. 339, &c.) 
Kiudershy, in reply. 

Judgment. — November 13. 

The Master of the Rolls. — The information prayed a declaration that R. H. Pmt 
had resigned the office of town clerk of the borough of Poole, and that he was not 
eutitlfd to any compensation ; but if it should be thought that he did not resign, but 
that he had been removed from office, then it asked for a declaration that he was 
entitled to compensation for the office of town clerk, but not the other offices whid 
lie lield in the borough. It also prayed that the bond for 4,500/. given to Mr. Rmr 
M a compensation for loss of several offices was not binding, but fraudulent and void, 
and ought to be held good for such sum only as upon reference to the Master should 
be found due. On the 1st of September, 1835, Parr was town clerk of the borough 
of Poole, and he held other offices connected with it, some of which were said to be 
incompatible after the passing of 5 & 6 Wm. 4, c. 76. Thomas Arnold was elected 
town clerk, and in August following Parr sent in his claim for compensation for the 
offices held, which were town clerk and clerk of the peace ; he also filled the offices of 
solicitor to the corporation, clerk to the magistrates, clerk to the corporation, solicitor 
to the under-sheriff, clerk to the commissioners of land and assessed taxes, clerk to 
overseers and board of guardians, clerk to the commissioners for lighting and watch- 
ing, solicitor to the surveyor of highways, solicitor to the quay committee, solicitor tB 
the water-bailiff, and prothonotary of the Borough Court of Record. It was said that 
it had been usual to hold the offices for life, and accordingly he claimed 4,835/. Oa 
the 5th of October, 1836, the claim was brought before the town council, and one- 
third of the council present declined to receive the claim, and it was adjourned to the 
14th of October, when it was considered, but not disposed of, and it was aguB 
adjourned till the 9th of November. In the meantime a revision of the burgess-fiat 
had taken place, and upon the election of town councillors. Parr's party was increase^ 
and another adjournment took place till the 23rd of November, when the claim ml 
admitted, and 4,500/. awarded in respect of all the offices. The reason for redocnf 
the claim did not appear, but a bond was executed for the payment of the 4,5001. hf 
instalments. It was said that the adjournments had been ftuudulently oontinned to 
secure Parr the amount of the compensation, and relief was now asked on the grotmd 
that Parr had resigned. Admitting that there was improper conduct in the reviaoi 
of the burgess-list, he (Lord Langdale) did not find that the adjournments of the tovi 
council were fraudulently continued, but he could not hear of such proceedings withoit 
disapprobation. It was not, however, proved that they had been procured by Fm for 
the purpose of obtaining an increase of the compensation, or to prevent the interfier* 
ence of a higher tribunal. The allegations of fraud also were not proved. Parr \aA 
obtained a judgment on the bond, but execution was stayed on the money beinff 
brought into Court. The property of the corporation was held upon trusts, whki 
gave this Court control, lliere was no proof of the allegation that Parr had resigneli 
It was said that acquiescence in the election of Arnold was a resignation. It was cletf 
there was no formal resignation. But it was asked that it might be inferred becams 
of the appointment of another to the office, and because after the passing of the Act 
it could not be performed without a sacrifice. Mr. Parr found he could not compete 
with a rival candidate ; but was he to be deemed to have resigned, and not entitled t» 
compensation ? No such consequence was intended by the Legislature. It was said 
that Parr did not propose himself, and that he had resigned by arrangement wiA 
Arnold ; but four witnesses had been examined, and they shewed there was some 
jM tc inent in the borough, but the allegation was not supported. Parr was entitled 
^flflHtonpenaation for the office of town clerk, regard being had to the time for wImIi 
JT^^ytl^ hdd, and other circumstances. He also claimed compensation as clerk to the 
of taxes ; this he had not lost, and the amount could not be aaoertained* 






MICHAELMAS TERM* im^ BM 

He (Lord Langdale) would have been glad of an authority for his direction, but it 
did not appear whether the offices were connected and dependent on the principal 
office ; this ought to be shewn. He, however, thought Parr was entitled to compen- 
ntion for the offices of clerk to the magistrates, solicitor of the corporation, clerk of 
the peace, solicitor to the quay committee and water-bailiff, and prothonotary of the 
Borough Court of Record ; but not for the offices of solicitor to the under-sheriff and 
coroner — they were not dependent on the office of town clerk, but were held distinct. 
Nor was he entitled to compensation for the offices of clerk of the overseers and board 
of guardians, clerk to the lamp and watch commissioners, or solicitor to the surveyor 
of highways, as no claim had been established. It should, therefore, be referred to 
the Master to take an account of the profits, &c. of the several offices for which com- 
pensation was to be given, for five years from the 9th of September, 1835, of the 
nine of the offices, and to state the compensation, with liberty to state special cir* 
ouDstances; and the bond would stand for what should ultimately be found due, 
reserving further directions and costs. 

December 17. 

The case was again mentioned, to have the minutes changed as to the time from 
ihidi the five years were to be reckoned ; not from the 9th of September. 1835, but 
from the Ist of January, 1835, agreeably to the minute of the Lords of the Treasury ; 
bat his lordship did not think he had power under the Act, and refused. 



Q.B. Thursday, November 21. 
Rbminqton V, Dalbt. 

CkttrcMwmrden9^Prokibiiion, 

the Comrt eamiden ihat there ehould be a prohibition of a suit in an Ecclenastical Court, 
the poriff agavut whom it ie prayed cmn compel the plmntif to declare. 

PROHIBITION. — A rule had been obtained to shew cause why a writ of prohi- 
bition should not issue to stay proceedings in a suit instituted in the Consis- 
tbrial Court of Lincoln, by Remington and Simpson, the churchwardens of the parish 
<tf Long Bennington, against Dalby, the chapelwarden of the township of Fostan, in 
the said parish, the party libelled. It appeared that the chapelwarden of Fostan had 
nfosed to levy a church or lay rate, which it was contended that Long Bennington, by 
juemorial usage, had a right to require the township of Dalby to contribute as 
ifci share to the rates of the whole parish, being three-eighths of the whole amount. 
^^ the poor-rate was levied in like proportion. The answer to the libel stated that 
Fostui was a separate parish and had its separate chapel, and denied the right of 
hmg Bennington to levy rates on the inhabitants of Fostan. The entire question 
I Vis, whether Fostan was a separate parish or not. In 1842, a rule nisi for a inoiMla- 
\ wn was obtained to enforce the payment of the customary proportion on Fostan, but 
the rale was discharged because it did not appear " that the Fostan people were sum- 
fflooed to consider of the rate," which omission would make the rate invalid, if the 
CQstom required it ; and if the custom did not require it, the rate could not be legal. 
0Ug. V. Dalby, 3 Q.B. 602, per Lord Denman, C J.) The suit has since been com- 
■eneed to enforce the same rate, which the Court was now asked to stay by prohibition. 
KMft QC. (with whom was Pearson), now shewed cause. — ^The Court cannot make 
lUt rule absolute for a prohibition, so as to prevent the churchwardens of BenningtOA 
torn having the matter tried, and so to oust them of their jurisdiction. They have a 
ijl^ to require that the party libelled be put to declare. This was the course pursued 
in Bstrder ▼. Veley (a) (12 Ad. & Ell. 233). In the case of Beauchamp v. Turner (10 
Ad. & Bll. 219) a prohibition was also refiised. 

In tUt, the fimums Cbarch Rate Case, the proofofthe libel which eomplaiDrd of the sitbtractioa 
' Coort had admitted the defendanta to of ehureh ratet. Bat, inaamuchas the Ubd shewed 



8|MtiiJ 



leS MAGISTRATES' CASES. 

Martin, Q.C. for the rule.-— In Beauchamp ▼. Tvimer, it ^^as held that a right to 
tithe which was in issue was a matter clearly cognizable by a Court Christian. The 
only question here is, as to the parochiality of Fostan, and whether it be or 
not a part of Long Bennington. This is not a question cognizable by a Court 
Christian, neither is the custom of payment of rates. [Colbridgb, J. — How then do 
you propose to try the question ?] By mandamus, all the parishioners having been 
first summoned to make the rate, as laid down in Reg, v. Dalhy {supra). It is use- 
lessly incurring expense to put us to declare in prohibition, for here clearly the Court 
Christian has no jurisdiction whatever, and the rule for the prohibition may be made 
absolute. {Com. Dig, Prohibition, F. 2.) (a) [Loan Dbnman, C.J. — ^There is a 
judgment in Burrows's Reports,(6) in a case where prohibition' had been prayed by t 
college to the Bishop of Ely, as visitor, to stay proceedings upon a monition isaaed 
by him on a suggestion that he was not visitor as to the matter in question, and that he 
had no jurisdiction, and Lord Mansfield there says, " When the matter seems doobtfol 
to the Court, upon a question of fact or law, the plaintiff has leave to declare that the 
parties may have the fact properly tried by a jury, or the law solemnly considered aa in 
a cause. When the Court is clearly of opinion that there is sufficient ground for the 
prohibition, the defendant has a right to put the plaintiff to declare, that his jurisdicdoa 
may not be taken from him in a summary way where such writ of error wUl lie. Bat 
if the Court be clearly of opinion that there is no ground for prohibition, it ought to be 
denied without putting the defendant to expense, and dela3ring, in the meantime, the 
exercise of what appears to them a lawful jurisdiction." The same rule b laid down 
in 1 Wm. Saund. 136, a, where it is said, " When the Court is of opinion that there 
should be a prohibition, the party against whom it is prayed has, in a manner, a right 
to insist that the plaintiff shall declare, though no person who applies for the pro- 
hibition has such right when the Court is of opinion against the prohibition.'*] But 
this is not a case of which the Court Christian can have any cognizance. Under 
precisely similar circumstances a mandamus has been held to be the proper remedy 
{Stead V. Heaton, 4 T.R. 669) ; and a prohibition was granted where a suit was 
instituted in a Spiritual Court to determine whether certain lands, in which a titho 
modus was claimed, were extra parochial. {Gould v. (rapper, 5 East, 345.) In th^ 
matter of the Dean of York (2 Q.B. 1), this Court granted a prohibition without calling 
upon the applicant to declare, on the express ground that no doubt existed that th^ 
Ecclesiasticsd Court had no jurisdiction as to the deprivation of the dean.(c) The Court? 
did likewise in the matter of the Chancellor, SfC. of Oxford and Taylor (1 Q.B. 952). 

Lord Dbnman, C.J. — ^There was nothing to shew that in either of the cases citeiS 
in support of this rule the Court was called upon to see what course it was proper to 
take under these circumstances. We ought not to preclude the defendants from wl 
full inquiry, or from their right to have the question considered and decided in th^ 
most solemn manner. It is clear from the earlier cases that the defendants hav^ 
a right to require that the pkdntiff shall declare in prohibition. If they are wrong, m^ 
assume that they will not accept the declaration, when the proceedings may be stayed^ 
The costs of the proceedings will of course faHl only upon the party who is in tb0 
wrong. 

Williams, J., Colebidge, J., and Wiohtman, J., concurred. 

Rule absolute to declare in prohihition. 
J. C. S. 
on the face of it that the rate had been illegally nade authorities were not, we beliere, cited In the ngc* 
bythe charchwardeot alone without the parishioners, mrnt. 

theConrtgraoted prohibition. The plaintiff had, bow- (6) Moiter and FeUowsqf St.John^t CoHtCmS^r 
erer, declared in prohibition ; and the point at issue v. Tdddington, derk, 1 Burr. 158. 
in this case of Long Bennington did not arise at (c) The words used by the Court are, *'Ifti* 
■11. found any doubt, we should be bound to invite fla^ 

(a) Where the boundaries of a parish are in ques- ther discussion, b j calling upon the Dean of Yoik t» 
tioo, it has been expressly decided that prohibition declare in prohibition ; but we owe it to all MfHtf 
lies. 3 Rot Abr. 291 ; Croke, Eliz. 228. These to save them the inconvenience and anxiety cf frdl» 

lessdeUy." 



BpCHAELMAS TERM, 18U. 163 

Q.B. Friday f November 22. 
The Qubbn v. Tbb Town Council of Stamford. 

Moudtnmu* 

will not le granted until the preeUe thing it m to eontmJkd has been required qf th 
pttrtg to be done, and it be shewn that he hae refused to do it, 

^ANDAMUS. — ^A rule had been obtained, calling upon the town council of 
Jl the borough of Stamford to shew cause why a mandamus should not issue to 
npel them, by their treasurer, to pay the sum of 197/. Ids, to the account of 
i borough fund, and cause the treasurer to account for the said sum. 
[t appeared that this sum had been improperly paid to an attorney, and the Court 
Queen's Bench had quashed the order for the payment. The town council had 
m called upon to refund the money, which they refused to do. 
Whitehurst, Q.C., now shewed cause. — ^The application to the town council did not 
quire the same thing to be done as that whi6h it is now sought to compel them to 
) ; therefore, they have not refused to do that which the mandamus is to command. 
A. /. Stephens, control.— It is sought to punish the neglect of this duty under the 
munary powers given by the 5 & 6 Wm. 4, c. 76, s. 60, in case the treasurer be 
iQed in the town council to refund money and refuses to do so. 
Lord Denman, C. J.— We assume that every one will do his duty until it is dis* 
iDcdy shewn that he has refused to do it. In this case, that has not been shewn : no 
wuditmus can go, until the party against whom it issues has been required and has 
sfiued to do that which it is to command.((i) 

Rule discharged, 
J.C.S. 



The Queen v, Wilson and Others. 

Quashing indictments, 

ikris of Quarter Sessions have fuU power to quash indictments brfore plea pleaded. This Court 
ftSI review an order to quash an indictment when removed by writ qf error, but not by 



}fEWTON had obtained a rule calling upon the defendants, Wilson and others, and 
the justices of Gloucestershire, to shew cause why an order of Sessions to quash 
^ indictment which had been brought up together with the indictment by writ of 
firtiorari should not be quashed. The indictment was preferred by Augustus Newton, 
liq., barrister-at-law, against Wilson and others, at the Michaelmas Sessions for the 
BBWty of Gloucester in 1843. The first count was for a forcible entry, riot, and 
HMQlt, and for the unlawful imprisonment of Mr. Newton, against all the eleven 
kfendants ; the second count was for the same offence, against two only of the 
iefendants ; the third and last count was for the riot and assault only, against all 
it defendants. The grand jury found the bill, and the defendants were bound over 
i> appear and be tried at the then next ensuing Sessions. Notice was subsequently 
{ben by the defendants to the prosecutor, that they intended to take their trial at the 
ud next Epiphany Sessions ; at which sessions they accordingly appeared, when, on 
lie indictment having been read, and before plea. Greaves, as counsel for the defendants, 
Boved to quash the indictment, on the ground that different defendants were joined in 
Efaent counts for the same offence, (b) 

f«) See Bex t. Brecknock Canal Company, 3 Ad. diilSerent commissionen, some of whom were, and 

>BLil7« some of whom were not, parties to the appeal. 

(6j inia objection was taken on the anthority of General demurrer. Lord £Uenborough, C. J., 

t»v. Kingston (8 East, 41), which was an indict- gave this judgment. — **This would have been a 

eet afaiost commissioners who bad refused to pay ground of application to the discretion of the Court 

e costs of an appeal under a local Act. There were to quash the indictment for the inconyenience which 

ircovBts, all charging the same offence against may arise at the trial from joining different counts 



la* MAGIBTRATEB' CASFfl 

The Sessions quashed the indictment; at the same time refusing to hear M 
Newton, on the ground that it was not competent to him to act in the double capadl 
of counsel and prosecutor. 

Keating now shewed cause. — ^The defendants in this indictment, wearied by tli 
continued litigation waged against them, have declined to shew cause against this rule 
I appear for the justices of Gloucestershire. The object of this rule is to quash th 
order of Sessions ; but that order is a judgment, and as such cannot be dealt with a 
got rid of by writ of certiorari. It is matter of record, and can alone be removed b^ 
writ of error. (Rex v. Seton, 7 T. R. 373.) In Rex v. Jackson (6 T. R. 145), a recon 
was removed by certiorari between verdict and judgment. On cause shewn against i 
rule to arrest the judgment for objections in the indictment. Lord Kenyon, C. J., 
held, that though there were instances in which the proceedings had been removed 
from inferior jurisdiction in this stage, it was a practice to be discountenanced ; and 
that if the Court was of opinion that the judgment ought not to be arrested (and soch 
opinion could not be revised on a writ of error), a procedendo must be awarded ; that a 
Rex V. Potter (2 Ld. Ray. 938), this Court had refused to go into such objections, and 
that he, Lord Kenyon, held, that the Court should adopt the same mode, observing 
that the defendant might bring a writ of error after judgment, if he were advised 
that the record was erroneous. No authority can be adduced on the other side tfait 
the record may be removed by writ of certiorari, and the proceedings thereby reviewed. 
When once judgment is given, a writ of error is the only mode whereby defects maybe 
remedied. (1 Chit. Crim. PL 747.) The old procedure was indeed to bring the record 
up by certiorari, and then assign error on it ; but that is now a disused form. 
It is contended on the authority of a dictum in Jervis's Archhold on Criminal Plead- 
ing, that Courts of Quarter Sessions have no power to quash indictments. It ii 
submitted, first, that they have full power to do so ; and, secondly, that this CoQit 
will not go into the reasons of the Court below for the exercise of its rightful 
discretion. Courts sitting under commission of Oyer and Terminer and Gaol 
Delivery have of course full power to quash indictments. It is a power inherent in 
them at common law, and amply sanctioned by their general power so to act that 
justice be perfectly done. For example, as in this case, where a prisoner might be em^ 
barrassed by a multiplicity of counts, or of charges in the same count, the Courts may 
quash indictments. Many of them may be good on demurrer. But Courts of Quarter 
Sessions — the terms of the commission under which they have jurisdiction an 
analogous to those of Courts of Assize. There can be no reason, and there is cer- 
tainly no case shewing that the powers of the one are not incident to the other. 
Moreover, the commission, whence the justices derive their powers, in express termi 
gives them jurisdiction not only to inquire the truth of all maimers of felonies, &c.i 
but also " to inspect all indictments." (34 Edw. 3, c. I.) (a) Lord Mansfiekfi 
opinion, in Hartley v. Hooker (Cowper, 523), is cited in the judgment given by Lod 
EUenborough, in Rex v. Wadley (4 M. & Sel. 512) : he says, " Where an infeiioi 
Court, established according to the course of common law, is prescribed for the trial cl 
a new offence, it tries the offence as a Common Law Court, subject to all the conse- 
quences of common law proceedings." Among these consequences is clearly that d 
quashing indictments where they are so faulty that justice could not be otherwise 
done. It were difficult to contend an authority so essential to the purposes of justice 
should not reside in Courts proceeding according to common law. They have power to 
determine demurrers, and if so, why should they not be invested with the MialogoM 
but lesser power of quashing indictments? [Williams, J. — Are you assuming that 

against diflfercnt offenders; bnt where to the of- then let judgment in novirise be given before you, &e.f 

fencfs so charged in different counts there maybe unless in the presence of one of our justices of tk« 

the same plea and the same judi;ment, there is no one or other Bench, or of one of our justiew 

authority for saying that such joinder in one indict- appointed to hold the Assizes in the aforesiM 

mentis bad in point of law; nor is there any legal county." As regards indictments, it is furtba 

inconcruity on the face of it to warrant us in giving stated, that a keeper of the rolls has bcea assigwi 

judirment for the defendants on demurrer." &c. ; and therefore you shall cause to be brought b^ 

(a) The commission, however, also contains an fore you, &c., the *' indictments aforesaid, tfaatthej 

ezpiess proviso, that " if a case of difficulty upon may beinspected, and by a due course determUuij it 

tion of any of the premises before you, is aforesaid." 



j0^ 



or more of you, shall happen to Briae» 



inCHAELMAS TfiBM^ 16U. U$ 

ae Sesnons did right to quash the indictment because it contained several counts 
l^ainst several defendants ?] I am not now contending that the Sessions exercised 
lieir jurisdicticHi as your lordships might have done, but simply for their power 
to exercise that jurisdiction, although I could support their discretion in this 
one. The terms of the commission of the peace give the justices such extensive 
jptrisdiction; they might have tried cases of murder, there being nothing in the 
commission to prevent it, though, before the last statute, they made of their own accord 
tfe seriousness of the offence the test of the propriety of their jurisdiction. Having 
pven them those full powers, the commission calls on the judges to inspect aU 
iDdictments according to law, as in like case it has been accustomed and ought to be 
jone. The Commission of Oyer and Terminer is in like terms, and the judges are 
Aereby required " to hear and determine the said reasons and other premises, accord- 
■^ to the law and custom of England." (4 Bl. Com.) Throughout the reports, 
10 case can be found which excludes the Quarter Sessions from the exercise of this 
citttomary privilege of the superior courts, — a privilege, therefore, appertaining to all 
i&ers to which the usages of common law are alike incidental. It would be absurd 
to give to these Courts the power of trying all offences, and to withhold from them the 
CDDcomitants of that power essential to the due execution of what justice requires. 
Tkis being so, it is rather for the other side to produce authorities against so reason- 
lUe a usage, than for us to be called on to produce them in its support. The exercise 
cC the discretion of the justices this Court will probably not inquire into. 
Hey deemed it improper, in the first place, to allow Mr. Newton to act in the 
joint capacity of counsel and prosecutor. [Lord Denman, C. J. — We do not think 
1« can entertain the question of the propriety of the proceedings at the Quarter 
Sosions, as to its grounds for quashing the indictment.] 

Newton, contrk. — It is not contended that the indictment was bad. The Quarter 
fiesflons exceeded their jurisdiction in quashing the indictment, and wherever that 
ii the case, the proper mode of bringing the proceedings before this Court is by 
€trtiorari. It may be true that a writ of error would lie, but that is not the only 
aode of proceeding. It is laid down, in a book of universal use and some autho- 
%, as a distinct rule, that indictments must be removed to the Court of Queen's 
^Inch from all inferior courts to be quashed. (Jerv. Archbold, Crim. Plead. 66.) 
His Court is called upon to establish a power which, if granted, will be exer- 
OKd throughout the kingdom, by courts, of which it has been the tendency rather 
to restrain than to increase the jurisdiction of late. In this case the indictment 
hA been found at a preceding Court of Quarter Sessions. The defendants had 
teopy of the indictment furnished to them with the consent of the prosecutor; 
fcy then gave the prosecutor notice " that they intended to appear at the Sessions, 
, ftm and there to try their traverse." They did not plesul, but moved to quash the 
ikfictment. The prosecutor was not allowed to be heard, on the ground that he was 
ttQDsel in his own case. One party was heard and the other party was not heard ; 
•id the decision was come to on the one-sided view the Court took of the matter, 
fcthe first place, it is required by 60 Geo. 3 & 1 Geo. 4, c. 4, s. 5, that in all cases 
Hiere defendants are committed or held to bail to appear to answer for misdemeanours 
•t a subsequent session, "he or she shall plead to such indictment at such subsequent 
Session and shall proceed to trial thereupon at such same Session of the Peace." This 
express enactment was not complied with. To give the Court of Quarter Sessions 
jurisdiction, there ought to have been a demurrer or plea of abatement. There was 
Jldther, and the Court had no sort of authority to do as it did. On demurrer, the 
indictment would have been good, and the defendants must have admitted the charge. 
There may be cases in which the Court of Quarter Sessions may quash an indictment, 
Wt not in this case, where neither the statute nor tlie course of common law proceed- 
ings has been pursued. Where the Court has manifestly exceeded its jurisdiction, it 
10 competent to remove the proceedings by writ of certiorari without writ of error. 
{Reg T. Justices of West Riding, 5 T. R. 629.) The Court of Quarter Sessions will 
possess a large and dangerous power, if in them the choice rests to quash indictments 
•ft their pieamire without plea or demurrer, and after refusing to hear the other side. 
There are difficulties sufficiently great already to discourage prosecutions. 



166 MAGISTRATES' CASES. 

Lord Dbnman, C. J.«»Mr. Keating has put this qaestion in its right light 8 
regards the right to quash indictments. Upon the right of the Sessions to do so tly 
whole question rests. There is no doubt that the courts of Quarter Sessions do pas' 
sess power to quash indictments before plea pleaded. Courts of superior jurisdictkn 
possess this power, and there is clearly no reason why inferior courts should not 
equally exercise it. They are to exercise their discretion upon the whole bearing of 
the matter brought before them. This Court may institute an inquiry as to the mode 
in which their jurisdiction is exercised, but not when brought before it by writ of 
certiorari ; here we have to look only as to whether they had the power or not. Mr. 
Newton has argued as if improper motives were imputable to the Court of Quarter 
Sessions in this case : if so, the rule should have been drawn up for a criminal infor-^ 
mation. There might have been very strong grounds for considering that the juris- 
diction was improperly exercised in this case, but of that we can say nothing now, tlie 
writ of certiorari being clearly not the proper mode of bringing the circumstances 
before us. 

Williams, J. — I was much pleased with Mr. Heating's remark, that it was for tiie 
other side to cite authorities to shew that a power did not exist, which there was evof 
reason to suppose did exist, inasmuch as it is exercised by all courts of assize. Botk 
courts are intrusted with the trial of felonies ; why not with the same power to try 
them, and with the subordinate power to quash indictments ? But no authority k 
cited ; therefore I conclude that none such exists. On the return to the writ no 
question is open to us but the competency of the Sessions to quash indictments. I 
tiiink they have that power. 

CoLERiDGB, J. — I am of the same opinion. This is a question of jurisdictioiu. 
Mr. Newton, as well as Mr. Keating, seemed to say that in some cases the Quarter 
Sessions have power to quash indictments. They sit and try with all the incidents of 
common law proceedings, and clearly have power to quash indictments. Their jurist 
tion is denied on two grounds : first, that the indictment had been found at a preriooi^ 
sessions ; secondly, that the justices wrongly exercised their discretion. As to tiiSI 
first point, it appears, indeed, that this indictment was found at a previous sessiook' 
Mr. Newton thereupon cites a statute which he thinks compels defendants to ptedt 
under the circumstances of this case. This is a mistaken view of the case ; that statntt 
was merely intended to prevent delay. It could not be said to a judge Uiat he cooMj 
not try an indictment because it was found at a prior assize. Where there has beei 
a fatal error, it is not unusual to quash indictments. Indictments have been quashel 
merely because the style of the sessions was wrongly laid. {Rex v. Roysted, 1 Loll 
Kenyon's Rep. 255.) As to the second point, the Sessions may have come to a wronil 
conclusion ; but this does not affect their jurisdiction. If they have decided wongly,ki 
the proceedings be brought here by writ of error, and we can then determine if tliB 
justices were wrong. 

WiGHTMAN, J. — I am of the same opinion. The Court of Quarter Sessions seemi 
merely to have done that without demurrer which they might have done, undoubtedly^ 
upon demurrer. The whole argument is, that they have not acted judiciously ; m 
may be a proper matter for our inquiry, if the proceedings are brought here by writ d 
error. Rule disckargeL 

Keating applied for costs. 

Lord Denman, C. J. — ^The rule must be discharged, without costs. This is a qnet* 
tion upon which we entertained very considerable doubt ; and it was for the purpose d 
considering the question that we granted the rule. 
J. c. s. 

NoTB.— It may be useful to note one or two of the leading decisions as to the exercise of the powerd 
quashing indictments, which the above case for the first time expressly decides may be exercised aiika If 
Courts of Quarter Sessions and Assize. In the case of Rex v. Deacon (1 Ry. & Moo. 27), Lord Ct 
Abbott held it the undoubted authority of the Court to decide, whether to proceed or not with indictmeaUt 
that it would be useless to proceed with bad indictments ; and be added that, in that case, '* the defidk 
ants ought to have moved to quash the indictment, or to have demurred." It would seem by this that cidM 
of these courses are optional. In Hawk. P. C. c. 25, s. 146, it is laid down as the rule, that tadletBOl 
should be quashed * ' where any judgment whatsoever given upon any part of it would be erroneout.*' HI 
is the most comprahentiTe aod eoneluslTe rote the booici contain on the tabject. The notkm, if miit l| 



BaCHAELBfAS TERM, 1844. 16V 

I proMcotor, is by no meani one of oonne. (Rex, t. Webb, 3 Barr. 1468 ; Reg, t. Taylor^ 9 Dowl. 600.) 
earlj as the power to quash is now defineil and settled, jostioes will do well to remember, that " quashing 
" as Blackttoiie remarlts, '* the strongest way,*' and not to be resorted to unless the defect be free from 
«hi; and when it is done, it most be before plea pleaded, in which point Reg, t. WUum confirms Frith*a- 
IBS (I Leach, 13), and oTermles the decision of Itndall, C. J., in R. t. r^on-oii-5eoeni (6 C. & P. 134). 
ha qpMhad an indictneat qfter plea, to save time, and arrest of judgment. 



Q.B. Friday, November 22. 
Tbx Quxbn v. Tbx Justices op East Sussex. 

QSMorter Segiioru — Evidence — MandamuM. 

Vkre the Seeaioue refine to hear evidence offered by the appellante to ehew thai no complaint of 
dtergeability had been made, on the ground that it was sufficient to recite such notice in the order 
i removal, the Court qf Queen's Bench will grant a mandamus to enter continuances and hear the 
Vpeat. 

A RULE had been obtained, calling on the justices of East Sussex to shew cause 
why a mandamus should not issue to compel them to enter continuances and 
kv the appeal of the inhabitants of the parish of Westham against the imdermen- 
Ibned order of remoTal. 
The affidavits disclosed the following statements and facts : — 

Two justices made an order for the removal of Henry Climpson and his three chiU 
ben, Naomi, Reuben and Olivia, from the parish of Eastbourne to the parish of West* 
tta, both in the county of Sussex. Against this order there was an appeal to the 
Shurter Sessions at Lewes, on the 10th of April last. 

The appellants' affidavit then state, that "the appellants were prepared with evidence 
■ support of the preliminary objection (contained in the 13th ground of appeal), ta 
hsw that no complaint had been made before the removing justices by the church-^ 
isdens or overseers of the parish of Eastbourne, or either of them ; and consequently, 
Itt the removing justices had no jurisdiction to make the said order ; but the Court 
if Qnarter Sessions overruled the said objection of the appellants, without allowing* 
■y evidence to be given thereon, holding that the recital of the complaint in the said 
sufficient to give jurisdiction to the justices who made the said order : that 
respondents then took a preliminary objection to the appellants' grounds of 
on account of the said grounds not containing any traverse (and which was not 
, as deponent believes), by the following statement in the pauper's examin- 
namely— -' Mr. Roods ' (meaning an overseer of Westham) ' procured some 
re for me, and placed me in a parish-house, hired by the said parish of West- 
lai, but situate in the parish of Pevensey:' that the Court of Quarter Sessions 
Aovcd the last-mentioned preliminary objection, and confirmed the order without 
ttnring any evidence to be gone into." 

The respondents' affidavit then states, " that the appellants took a preliminary objection* 
pflie said order of removal on the ground, ^r«/, that there was not any copy of a com- 
MDt, made by the churchwardens or overseers of Eastbourne, sent with the said order and 
PUmiation to the appellants ; and secondly, that no complaint in writing had been made 
[Vfiire the removing justices by the churchwardens or overseers of the poor of the said 
firith of Eastbourne, and consequently, that the removing justices had no jurisdiction 
knake the said order ; that it was admitted in argument, as this deponent under-^ 
ibod and believes, that there was a complaint made, but the objection was that it was- 
lot made in writing. The Court of Quarter Sessions overruled the said objection, on the 
Xmnds of its not being necessary that the complaint should be made in writing, and 
Bnsmitted with, and as a part of, the examinations ; that the appellants did not offer 
I pnxiace any negative evidence to shew that there was in fact no complaint before 
ie removing justices; and the respondents, on the other hand, were prepared with. 
jdence to shew that complaints were made before the removing justices, by and on 
Uf of the charchwardens and overseers of the poor of the said parish of Eastbourne,. 
rf Chej been required so to do, notwithstanding such complaint was not made ia 
iribidi M this deponent conceives is not necessary in point of law." 




16B 



MA«ISntATEr CASES. 



Jahnaan (with whom was Creasey) now shewed cause. — Where die affidavits an 
oonflicdn^, as here, the Court will not issue a nuauUimug, In the first jrface, the Ses- 
sions rigfady exercised their discretion. The respondents were p rep a red to shew that 
there was a complaint of chargeability in fact made, though ▼erbally ; and the con- 
plaint is not directed to be in writing by the 79th sect, of 4 & 5 Wm. 4, c. 76. The 
whole examination must be sent, but it is nowhere held that the complaint must be ia 
writing— /?ej v. Outwell (9 Ad. & Ell. 836) ; Reg, v. Bucks (3 Q. B. 800) ; (a) and in 
Reg. V. Bedingham (13 L. J. M. C. 75), it is distinctly so ruled. But assuming that 
the justices were wrong in law, they have exercised their jurisdiction without stating 
a case, and this Court will not interfere. Where they decide on the materiality of 
evidence the rule prevails {Reg. v. Cheshire, {b) 8 Ad. & Ell. 398). This is not a pre- 
liminary objection ; and it is for the Sessions to decide what is one, which they have 
done here {Reg, v. Kingsclere, 3 Q. B. 388 ; Reg. v. Charllmry Walcoit, 3 Gale 
& Dav. 179) ; and where the point is not a preliminary point of feet, the Court has 
refused to grant a mandamus, {Reg. v. Kesteven, 3 Q.B. 810 ; Reg. v. ComwaU, 1 
Bit. & Sym. M.C. 27.) The appellants here were moreover precluded from going into 
the case, having, out of twenty-five grounds, foiled to traverse any one material state- 
ment. The real point was not raised by the appellants, and the justices held that 
enough remained untraversed to support the order, and they therefore confirmed it. 
Neither the grounds of appeal nor the affidavit state that there was no complaint. 

The Solicitor- General, for the appellants. — ^The affidavits do not conflict. Hie 
appellants stated that there was no order. The order is the authority for the whole 
proceedings in Reg. v. Bucks (3 Q.B. 800). The Court said, " If there had been u 
complaint, the magistrates would have had nothing before them on which they coali 
make an order ; but there being a complaint, they were bound to inquire into all the 



(o) In the report in 2 Gale & Day. 560, it is stated 
by Lord DenmaD, C. J., that it need not be in 

WTitiQg:. 

(6) It will be nsefhl to record here the features of 
the leading cases on the much vexed point as to the 
power of the Court to grant a mandamus. It was 
held by Abbott, C. J., in Rex v. AfiddeseXf 4 B. & 
Aid. 298. that " it is the ordinary practice of this 
Coart {Q,. B.) to grant this writ, to compel magis- 
tra cs to hrar and determine a cas? in which thry 
bar a jurisdiction to hear, but have wholly refused 
to exerdse it; but there is not an instance which can 
be cited where the Court have granted a mandamus 
to justices to compel them to come to Huy particular 
dee'sion. In Rex v. Carnarvon (4 B. & Aid. 86), 
Bayley, J. said, " where they (the Sessiims) do not 
desire our interference, we have no jurisdiction ;" and 
this was a cose where an order had been confirmed, 
because the counsel for the appellants opened his 
case with a speech contrary to the rule of the ses- 
aions. In this case, says Baylry, J., they '* entered 
into the consideration of the appeal ;*' had thev not 
done so, Holroyd, J., held that the mandamus might 
have issued. Reg, v. Cheshire (8 Ad. & Ell. 398) is 
a strictly analosnus decision. The order was quashed 
because the notice was said by one magistrate to be 
informal, owing to the subdivision of a parish into 
townships. But the justices having jurisdiction, 
the Couit would not interfere, though it had *'no 
doubt they were wiong, and that they had acted 
very inconsistently and absurdly.** Per Patteson, 
J,,' Rex T. Broseley (7 Ad. & Ell. 423) is a similar 
case. But in Rex v. Cumberland (4 Ad. & EU. 695) 
a mandamus was issued, because the Sessions heard 
half the case, and refiised to go on with it, on the 
ground thnt they had not jurisdiction. In Reg, ▼. 
West Riding {Clinton v. BirstwUh, 10 Ad. & EU. 
685), Lord Denman thouieht the Court *' not pre- 
dnded from entering into an inquiry, whether the 
Sessions have decided rightly on any preUmimary 
point of praetioe necessary to determine their own 
lorisdiction ;** but he, at the same time, held it to 
bt < * qoite within the jorii^ttction of the SeMtoot to 



decide whether there is, or is not, a tvbstaatiil wi- 
ance in the evidence of a pauper.*' Reg. v. M 
Sussex (10 Ad. & Ell. 682), though cited 
as an authority for granting a MaiMlaaNii, 
goes to thi«, that the Court Uiere refused a 
mus, because the Sessions were rivbt, withoat al- 
luding to the question of jurisdiction to iatctiBrti 
Thus the non-interference principle becUMM rrluri^ 
until it was wholly set aside in the twin OMCi d 
Reg. V. Carnarronshire and Reg. t. Weat MUk$ 
(KeigMey v. Wilsden, 2 Q. B. 325 & 331), in bolkrf 
which H mandamus issued to compel the SeasioMti 
hear appeals after they had decided that the evideM 
was insufficient on the face of the examination, la 
{Reg, V. Kesteven, 3 Q. B.810, 1 Bit. & Sym. M.C. 
8), Lord Denman, C. J., in giving jndgineat. nid: 
** The decision in Reg, v. Camarvmskirt ia rienlf 
wrouf? ; that in Reg, v. West Riding, if there be iif 
distinction, still more wrong ;** and in this case. MV 
the standard authority, the non-interfSerence pitei- 

gle, is not only restored, but rendered more eooifn- 
ensive than ever by this rule, as to the granting oft 
mandamus to compel the Sessions to hear appeals, ft 
was said in Reg, v. ComammsMre, that wb» the Stt- 
sionSfOna ''preliminaryobjectionwhiehisinvaBd,!** 
fuse to hear, the Court will grant a ma nd a mu s , 'tbd 
is true, if the objection turn upon such a point of ane- 
tice as the Court can see to be matter (^ law, If tki 
Sessions have acted upon a supposed rule, wlidi 
really is no rule. But if, as a preliminary olgeetisBi 
they decide a matter of fact, we are bound by that d^ 
dsion.*' The case, in this instance, turned on thi 
sufficiency of a statement of apprcntieeabip. "Tto 
question,** said Lord Denman, **as totbe snfideacjdf 
a notice of grounds of appeal in its statement of tht 
facts on which the appellants mean to rely nn|it li 
for the Sessions ; we can form no opinion of it.** 

This, then, is now the rule :— Where the jvliBa 
have gone into a case, and heard evidence, a bmb- 
damms is never granted : where they have not |He 
into the case, and have only decided on a praal" 
nary point, if that question be one of law, a' m n iv 
MwwiUbegranleJ-ifoDeQflMt,ll«B Ml. 



MICHAELMAS TERM. 1844. 169 

hctB on which an order must be founded." Here we objected that no complaint was 
made, and the Court of Quarter Sessions overruled the objection without allowing any 
efidenoe to be ^ven. It is submitted that they were wrong in point of law. The 
Sessions decided that the recital of the complaint in the order of removal sufficed. A 

mndamus will go, in this case, in accordance with the doctrine held in Reg, v. Kesieven. 
Loan Dbnman, C.J. — It appears upon the whole, that the Sessions refused to 

entertain the question at all, and that the numdamus ought in this case to go. 

Rule absolute. 
J. C. S. 



Q.6. Monday, November 25. 
The Qubbn v. The Inhabitants of Castbbton* 

fit wiarffin qf an order of removal it part qf the order, and where the order wa» directed to the over* 
uert of jr., in the eaid county , and the removing jnetieee were deteribed aeofthe eaid eowUy, the 
mdy eotmU named being in the teorde **Weitmoreland, to wit,** in the margin qfthe eaid order :'^ 
HM, that thejmriidiction aufficiently appeared, 

ON appeal against an order for the removal of one James Dickson, from the town- 
ship of IGrkby Lonsdale to the township of Casterton, in the county of West- 
■areland, the Sessions confirmed the order, which was now brought up by certiorari, 

A rule had been obtained by Ptohley to shew cause why the order should not be 
quashed. The order of Sessions was as follows : — 

WeMtmoreland, to wit. — ^Be it remembered, that at the (General Quarter Sessions of our 
Lidy the Queen, holden at Appleby, in and for the county of Westmoreland, on, &c., 
kfcve, &c'., and also to hear, &c., that same Sessions of the Peace is adjourned, &c., 
mil, &c.; in, &c., at. Sic, to be holden at Kendal, &c., to do, &c. And on the said 
Mday, &c.; the same General Quarter Sessions of the Peace, as holden by the adjoum- 
kmt aforesaid, at Kendal aforesaid, in and for, &c., justices, &c., at which said General 
Qoarter Sessions at &c., before &c., an appeal against a certain order, bearing date the 
18th day of October, in' the year of our Lord 1843, imder the hands and seals of John 
Wtkefield, Esq., and Richard Fothergill, Esq., is then and there depending for trial, 
vloch said order is annexed to this schedule, and is in manner and form as follows : — 

" WeMtmoreland, I '• To the overseers of the poor of the township of Kirkby Lonsdale, 
to wit. 3 and to the overseers of the poor of the township of Casterton, in 

ik Mod county. Whereas you, the overseers of the township of Kirkby Lonsdale, 
kve made complaint unto us whose names are hereunto set, and seals affixed, being 
two of her Majesty's justices of the peace and quorum in and for the said county, that 
Jimes Dixon has come to inhabit in your said township, not having gained a legal 
lettlement there, nor having produced a certificate owning him to be settled elsewhere ; 
«id that the said J. Dixon has been actually chargeable to your said township ; we 
the said justices, upon due proof made thereof upon oath, and likewise upon due consi- 
ination had of the premises, do adjudge the same to be true, and do likewise adjudge 
that the lawful settlement of the said J. Dixon is in the parish, township, or place of 
Castertcm. in the county of Westmoreland ; we do therefore require you the said over- 
seers of the poor of the said township of Kirkby Lonsdale, or some or one of you, to 
eoQvey the said J. Dixon from and out of your said township of Kirkby Lonsdale, to the 
add pariah, township, or place of Casterton, and him, together with this our order, or a 
tnie copy thereof, to deliver to the overseers of the poor there, or to some or one of 
diem, who are also hereby required to receive and provide for him according to law. 
6i?en under our hands and seals this 28th day of October, A.D. 1843. 

" S. W." (L.S.) 
•• F. F." (L.S.) 
** And whereas the overseers of the poor of the town of Casterton did prosecute and 
any on Oe said appeal to trial against the said order to the present General Quarter 

TOIi. I. H 



170 MAGISTRATES* CASES. 

Sessions of the Peace; and wherein and whereon this Court, apon hearing of connse 
on both sides, ordered that the said order be confirmed." (a) 

The order of removal was thus incorporated in the order of the Court of Quarto 
Sessions which confirmed it. 

Saines, Q.C. (with whom was Ramshay), now shewed cause. — ^The objection to thii 
order of Sessions is, that it fails to shew the jurisdiction of the justices who mad 
the order of removal. It, however, recites that order, in the margin of which tb 
county is named, and that suffices, for the words " said county" can have no othe 
reference. The case of Rex v. St. Mary's, Leicester (1 B. & Aid. 327) (b) ha 
decided that such reference is good, overruling Rex v. Chilverscotton (8 T. R. 178J 
and Rex v. Moor Critchell (2 East, SQ). Then it will be objected that the orde 
does not sufficiently shew in what county Kirkby I^onsdale is, inasmuch as the wor 
said county may apply to Casterton only, the words " said county" being restricted t 
the latter part of the sentence, and not applying to the former. But it has bee 
held that words in this position apply to all die foregoing parts of the sentence, thoog 
disjoined. {Rex v. Holbeck, Leeds, Burr. S.C. 198; Rex v. Bourne, Id. 29; Rex \ 
Southwold, Id. 143 ; Rex v. Countes, Thorpe, 2 B. & Adol. 487.) llie order of Sessim; 
sufficiently confirms the order of removal by reciting it, although stating tlie adjudici 
tion in the past tense. {Rex v. Maulden, 8 B. & C. 78.) 

Pashky, contr^. — ^The Court will have no difficulty in making this rule absolut< 
The jurisdiction of the justices must be shewn in a clear and unambiguous manne 
A reference in the body of an order to such preceding part of the order, if it be plaii 
will doubtless be sufficient, as was held in Rex v. Holbeck, but it is not so here. Hei 
the county is not stated in the order, and must be inferred ; but nothing can be left t 
inference. There is no authority for so doing. In Reg. v. Toke (8 Add. & Ell. 227] 
it was decided that the dwelling of T. G. sufficiently appeared by words of referenc 
in the adjudication, he being described as of the place where the justices had jurisdic 
tion ; but Lord Denman, C.J., was absent, and littledale, J., dissented. It has bee 
distinctly held since then, that orders in Chancery must distinctly shew on the face c 
them whatever is necessary to give jurisdiction. (Christie v. Unwin, 11 Add. & EU 
373.) Rex v. Chilverscotton is not overruled by Rex v. St, Mary, Leicester, Tb 
order merely avers that there was an order by two justices, which it recites without i 
substantive finding, which is requisite ; and the adjudication should have been in tb 
present and not the past tense. The order of removal is here treated as though itwer 
itself part of the order of Sessions ; but there should have been a substantive finding 
In re Clarke (2 Q. B. 619), a return to a habeas corpus by the Warden of the Ree 
stating that a prisoner was committed " upon the following order," then settiog ou 
an order purporting to be made by the Master of the Rolls, was held insufficient. N* 
intendment can be made in this case. In the execution of powers such as these, th 
authority must appear upon the instrument, and statutory requirements can only b 
fulfilled by a strictly literal and precise performance. {Rex v. Austray, 6 M. & Se) 
319.) Here, moreover, the order says ** did prosecute," but when does not appeal 
ITic county of Kirkby Lonsdale is not stated, and cannot be referred to the words saif 
county, which follow Casterton. Words of description apply only to their immediat 
antecedent. (Bac. Abr. title Maxim; Baker v. Baker, 7 Moore, 455.) ..Thestric 
construction of the words will be upheld. {Reg. v. St. Martin, 2 Q. B. 103.) The; 
might have removed to Kirkby Lonsdale in Lancashire without any incongruity. 

Cur, adv, vult. 
Tlie Court now gave judgment. 

Lord Denman, C.J. — ^The principal question was, whether the justices making th 
original order of removal appear, upon the face of it, to have jurisdiction ; or, in othe 
words, whether there are stated with sufficient certainty circumstances to shew thi 
the justices were justices of and for the county in which the removing township i 

(«) There were other objections, upon which no Leicester, and the words *' County of Rutland 

judgment was given. were then written in the margin. The justices wt 

{b) In that case an order of magistrates was afterwards described as b(*ing justices for the covii 

directed to tiie parish of W., in the county of Rut- aforesaid. Held, that the jurisdiction sufficienl 

Jund, and also to the parish of M., in the county of appeared. 



MICHAELMAS TERM» 1844. 171 

^tuated. The order, 8o far as this point is concerned, is in the following form : — 
"Westmoreland, to wit. To the overseers of the poor in tlie township of Kirkby 
Lonsdale, and the overseers of the poor in the township of Casterton." It then 
proceeds, " unto us whose names are hereunto set and seds affixed, being justices in 
«nd for the said county." The rest of the order, being in the usual form, is not 
objected to, and is immaterial. It was contended that, inasmuch as the justices failed 
to describe themselves in terms as being justices in and for the county of Westmore- 
land, they had no jurisdiction ; and that, therefore, the order cannot be supported. 

Of the cases cited, two were the King v. Chilverscotton, and the King v. Moor 
Critckett. It was admitted, however, by the learned counsel who argued against 
the validity of the order, that the King v. Moor Critcheli was not law. We are of 
ofHnion neither of the cases is applicable. In the case of the King v. Chilvers- 
coiton, the county was named in the margin of the order, and one parish described as 
bong in one county, and the other in the other ; and upon this circumstance it was 
Bade to depend that there was a. want of jurisdiction to the removing justices. The 
Court considered it was imcertain in one. In the case of Rex ▼. Moor Critcheli, the 
cwmty of Wilts was in the margin, but in the body the county of Dorset was men- 
tioned, and the justices described themselves as justices in and for the said county, and 
tbe Court held it ought to appear the justices had jurisdiction to make the order, and 
two counties having been mentioned, they ought to have stated of what county they 
vere justices. It is obvious the order, in the present case, is free from that imcer- 
tunty which, in both instances referred to, was fatal. The question was, whether the 
mazgin is a part of the order or not ; because if it be, then it was contended the town- 
ships are described as being in the county of Westmoreland, none other being named. 
Nov this point seems to have been long settled. The King v. Holbeck is thus 
xeported : " It was objected to the order of removal that the borough of Leeds was not 
aentioned in the body of the order of removal, but only in the margin, and, therefore, 
it does not appear that the two justices had jurisdiction to make the order." Lee, C.J., 
aid, " I take it to be settled that in orders, the marghi is ever to be considered as 
put of the order, and a clear, plain reference to it is sufficient ; and the Coiirt decided 
tbereupon." We are of opinion that this order is to be so construed, and that it may 
be sustained, as the jurisdiction of the justices making the order sufficiently appears. 
It was also objected — though I believe that this was answered at the time — that the 
oidar of Sessions is defective, inasmuch as it purports to be in the shape of recital, and 
Mt of direct allegation : we think, however, that the order does adjudicate, and that 
objection must, therefore, fail, and that the rule must, therefore, be ^scharged. 

Rule discharged, 
/. C, 8. 



END OF MICHAELMAS TERM. 






b2 



172 MAGISTRATES' CASES. 



HILARY TERM, 1846. 



Q.6. Saturday, January 11. 
Thb Qubbn V, The Inhabitants of Hbanob. 

Higkwap Act, 

Thi power qf -a Judge who triee tm indicimeni for ike fum-repair ef a highway to tertifjf far tak 
wiier theH ^i Wm. 4, e. 50, «. 95, only ttppliei to eaeee where the iiabiUtg to repair an efii% 
highway i» in quettion, and not where the jury find that there ie in ^eet no tueh highway, 

INDICTMENT.— A rule had been obtained calling upon the proseqaitor to shew 
cause why a certificate for costs, granted on the trial of this case by Tindal, J^ 
at the lasty Derby Assizes, should not be set aside. The magistrates had ordered tfais 
indictment to be preferred imder the 5 & 6 Wm. 4, c. 50, s. 94. The jury returned a 
verdict of not guilty, on the ground that this was not a public highway for carriagei, 
it being shewn to be only a bridle way, and as such in good repair. A summons nas 
afterwards taken out by the prosecutor, calling upon the defendants to shew cause whj 
the Lord Chief Justice should not certify for costs under the 95th section of the Ad, 
which provides that, " If on the hearing of any such summons (see s. 94) respecting 
the repair of any Idghway, the duty or obligation of such repairs is denied by the 
surveyor on behalf of the inhabitants of the parish, or by any other party charged 
therewith, it shall then be lawful for such justices, and they are hereby required to direct 
a bill of indictment to be preferred, and the necessary witnesses in support thereof to be 
subpoenaed at the next Assizes to be holden in and for the said coimty, or at the next 
(General Quarter Sessions of the Peace for the county, riding, division, or place where- 
in such highway shall be, against the inhabitants of the parish, or the party to be 
named in such order, for suffering and permitting the said highway to be out ol 
repair ; and the costs of such prosecution shall be directed by the judge of assize 
before whom the said indictment is tried, or by the justices at such Quarter Sessions, 
to be paid out of the rate made and levied, in pursuance of this Act, in the parish in 
which such highway shall be situate." On the strength of this section of the Ac^ 
Tindal, C.J., had made the certificate for costs in this case, which it was now sooglit 
to set aside. 

Hvmfrey (with whom was Gale), now shewed cause. — The statute distinctly states 
that the judge may give his certificate for costs in this case. (Reads section' 95.) All 
the requisites have been observed, and costs have been given under the order actoally 
made by Undal, C. J., but it is contended that the early language of the Act restricts 
the right to this certificate to such cases only as involve a dispute as to the road being 
a highway. This is a highway, though not for carriages ; yet equally a highway fat 
foot-passengers and horses, (a) The interpretation clause of the Act makes it one. 
The verdict having passed for the defendants, nowise invalidates the prosecutor's right 
to the certificate. (Reg. v. Yarkhill, 9 Car. & P. 218.) There is no discretion in the 
judge ; the words are, that the costs are to be certified of such indictment, and to 
be paid out of the rates levied in pursuance of this Act, " in the parish in which sud 
highway shall be situate." [Coleridge, J. — But here they say there was no such 
highway.] That would be only an indirect way of saying that the costs should be 
paid only if the prosecutor succeeded in proving his case. But the Lord Chief Justice 
expressly held in this very C€ise, that the Act extended to every case where a li^t tc 
repair a road was in question^— 22e^. v. Heanor, 13 Law Jour. M. C. 144 — and thv 
Court will not overrule that decision. The magistrates acted judicially, whethe 
the way proved to be a highway for carriages or not. [Coleridge, J. — If it prove 
not to be a highway for the purpose for which it is indicted, there is no highway t 
be so repaired ; and why, in that case, is parish A to pay the costs more than paris 

(a) Tbif has been long since expressly decided. (Hex y. Sofflp, 13 East, 97.) 



HILARY TERM, 1645. ITS 

B? A mere way is not a highway.] But whether or not, the prosecator, being bound 
to proceed upon the act of the magistrates, is entitled to his costs, be the resiSt what 
it might. ( Reg, v. Radnor, 9 Car. & P. 288.) [Pattbson, J.— It is clear that the 
Acti however framed, was never intended by the legislature to provide for costs in a 
ctse where, in effect, there is no high-road at aU ; but only where the liability to 
repair an existing road was in question. It never can be meant that there is to be a 
power of giving costs, where the existence of the road itself is in dispute.] 

Whitehurst, contrii, was not called upon. 

Lord Dbnmait, C. J. — I think the Lord Chief Justice should have been told what 
hid occurred upon this point in this Court. I was led into doubt as to a case of a 
nmilar nature, when an application had been made to myself for a certificate of costs 
under this section, and I Uien referred to a decision of my brother Pbtteson'8,(a) and 
[ found that he had held that the Act applied only to cases where the liability alone 
to repair was in issue. This case may, indeed, be determined upon the gross nature 
tf the right it is attempted to set up, that a man is to come and say, I will try and 
uke this out to be a road, and if I fail, the parish shall pay the costs. The power to 
fjnt the certificate attaches alone where there is a highway, and where there is a 
^[■Htion of liability to repair it. I think the Lord Chief Justice must have been mia- 
kd, and that his decision cannot be cited as an exercise of his discretion according to 
bk view of the law. 

Rule absohUe. 
J.C.8. 



Q.B. Tuesday, January 14. 

The Quben v, Thb Justices op Wabwickshibb. 

%Wv m numdamut is granted to compel Seetione to enter eontinuan^ei and hear an appeal ikey have 
refined to hear, it ia etsential that the affidavite q/* the appellants shew that the practice of the 
parHemiar Sessions with respect to the time qf notice qf appeal has been observed. 

SPOONER had obtained a rule in Michaelmas Term, calling on the justices of 
Warwickshire to shew cause why a mandamus should not issue to compel them 
b enter contmuances and hear an appeal by the parish of Coleshill, Warwickshire, 
fainst an order for the removal of Edward Sheffield, his wife and children, firom the 
urish of Kingsbury to the parish of Coleshill, both in the said county. 

The affidavits shewed that the order had been made in May, 1844, and duly served, 
hat notice of appeal was given against this order, and that on the 14th of June fol- 
owmg the appellants sent a notice of appeal for the next Quarter •Sessions at Coventry, 
to be holden on the 4th of July. The appellants not having entered the appefd, 
lor countermanded their notice, the respondents applied to ^tha Court to give diem 
tbeir costs, under 8 & 9 Wm. ^, c. 30, and the paupers were removed to Coleshill. 
Piesh notice of appeal was afterwards given on the 28th September, for the Sessions 
holden on the 16th October.. The appdlants applied to enter the appeal on the second 
dty of the Sessions (the 17th), when the Court of Quarter Sessions refused to allow 
te appeal to be entered. y ^ 

Hayes (with whom was Mellor) contended that there was no proof that the notice 
vn delivered in time for the Sessions, and argued at length that the appellants had 
induded themsidves from entering the appeal by failing tpi appear' in pursuance of the 
tint notice, anc^also that a mandamus would not go to coo^pd the Sessions to enter an 
i^ipeal they had decided upon. And also that here the appellants elected to appeal on 
the reedpt of the order, and, having done so, that they had no right to appeal on the 
leCoal removal ; that they may do either, but cannot do both. In Reg. v. //. Salop, 
[6 DoWl. '29), it was held that the removal itself jnight be treated as the actual griev- 
moe^ W nothing was done in that case when the order was served. In Reg, v. J J. 
lUddUssit (9 Dowl. 163), Patteson, J., said, "Looking at the enactments of 4 & 5 
(•) Reg. y. Chsdwortkf 9 Car. & P. 3S5. 



174 MAGISTRATES* CASES. 

Wm. 4, c. 76, and not finding any thing which shews that the legislature intend^ 
a notice of appeal not prosecuted to deprive the appellant parish of its remedy 
upon the actual removal of the pauper, and finding no absurdity or inconsistency in. 
volved in holding that it did not so intend, I feel myself bound to hold, that the ap. 
pellant parish might expressly or tacitly abandon their first notice of appeal, and take 
their remedy after the actual removal ;" but in that case a notice of trial had not been 
given, which destroys the analogy. Reg. v. Shipston upon Stour (1 Dav. & Mer. 123, 
1 Bit. & Sym. M. C. 41), Reg. v. //. West Riding, Stanley v. Alverthorpe (I New 
Sess. Ca. 1 Bit. & Sym. M. C. 132), were also cited in the argument. 

Spooner contrk. — ^The affidavits suffice. The Court will tidke judicial notice from 
me that it is the practice of the Sessions at Coventry to hear the appeals on the second 
day ; and from the whole tenor of the affidavit it appears that we were too late to enter 
the appeal qua appeal the first time. It is for the other party to shew that we gave 
insufficient notice the next time. 

[He was stopped by the Court.] 

Lord Dsnman, C. J. — This rule must be discharged. It nowise appears on the 
affidavits that the appellants were in time to enter the appeal on the second occasion, 
according to the practice of the Sessions. This is absolutely requisite, and in the ab- 
sence of any such statement, no presumption can be made, especially as in this case 
the presumption would go to charge the Sessions with acting improperly. 

CoLBBiDGB, J. — I am of the same opinion. It is quite consistent with all you have 
stated in these affidavits, that you were too late, and that the Sessions were quite 
right. 

Rule discharged with costs, 

J.C.8. 



Q.B. Mondat/f January 13. 

The Queen t;. The Mayor, Aldermen, and Councillors op the Borough 

OF Cambridge. 
Corporation — Mandamu9—Co9ts, 

Where, qfter judgment of ouster upon a quo warranto, the corporation refiae to proceed to an eUetim 
to supply the vacancy occasioned by such judgment, and a mandamus to compel them is ohtsinti, 
and obeyed, the corporation is liable for the costs qf that mandamus, and of the applicatkmfir r 
them ; and the Court will grant a rule calling upon them to pay such costg, though they had s^ 
upon the advice qf counsel, that they could not safely proceed to an election without a mandmMi ^ 
Intt will not in that rule give any direction as to the fund out qf which they are to be paid. ] 

A rule, therrfore, drawn up so as to require payment ** out qf the borough fund,** was mouUsi If 
striking out those words, notwithstanding that the application to the corporation had been for ps^* 
ment out of the borough fund. 

GUNNING, in Michaelmas Term last (Nov. 6), obtained a rule calling on the 
mayor, aldermen, and councillors of the borough of Cambridge, to shew caiue 
why they should not pay out of the borough fund of the said borough, to Stephen 
Pryor, the younger, the prosecutor of the writ of mandamus in this case, or to his 
attorney, the costs of and occasioned by and incidental to the issuing the said writ of 
mandamus, and also the costs of and incidental to this application. 

The rule was obtained on the affidavits of Charles Henry Cooper, H. W. Ravenscroft, 
and William Cockerell, from which it appeu^d that on the 30th of January, 1843, lea^ 
was given by this Court to file an information in the nature of a quo warranto against 
Joseph Jonathan Deighton, at the relation of Stephen Pryor, the younger, to shew by 
what authority he, the said J. J. Deighton, claimed to be an alderman of the said 
borough ; that accordingly the information was filed in or as of Hilary Term, 6 Vict.» 
and that in Easter Term, 1844, this Court gave judgment of ouster, on such information, 
against the said J. J. Deighton ; that on the 27th of May following, application was 
made on behalf of the said Stephen Pryor, the younger, for a mandamus for the ekction 
of an alderman of the said borough, in the room of the said J. J. Deighton, and that 



HILARY T£RiVI, 1845. 175 

00 the 28th of May a mandamus wa» issued out of this Court, directed to the mayor, 
ilderman, and councillors of the said borough, >vhcrcby it was commanded tliat they 
should, on Monday, the lUth of June, proceed to the election of an alderman duly 
qualified to supply the vacancy occasioned by the said judgment of ouster, &c., and do 
aQ and every act necessary to be done by them, or any of them, in order to the due 
election and admission of an alderman of the said borough ; that the said writ was 
doly delivered to the mayor, and copies thereof, together with notice of a meeting of 
the corporation on the 10th of June, for the purpose of proceeding to the election, 
were served upon the mayor, aldermen, and councillors ; that on the 10th of June a 
meeting was held for that purpose, and one George Salmon was elected to supply the 
Tacancy ; that a return to the writ was then made and filed. That on the 8th of 
tJone application was made to the mayor by a letter, of which the following is a 
copy:— 

" Cambridge, June 8th, 1844. 

"Dear Sir — I beg to enclose the account of the costs of and incidental to the mati' 
ions which has b^n issued by the Court of Queen's Bench for the election of an 
ilderaian in the place of Mr. J. J. Deighton. 

"The costs being incurred in a matter necessarily relating to a corporate election, 
«re therefore, under the 5 & 6 Wm. 4, c. 76, s. 92, payable out of the borough fund. 

"In the event of the council declining to make an order for pa3rment, I must apply 
under the 1 Wm. 4, c. 21, s. 6, for a rule of Court, but this will of course add to the 
KDoant. 

" I am, dear Sir, 

" Yours very truly. 

C. H. COOPEB." 

" The Worshipful the Mayor. 
Aod it then further appeared, that at a meeting of the council of the said borough^ 
Wd at the Ghiildhall, on the 15th day of July l^t, the said letter was taken into con- 
sideration by the mayor, aldermen, and councillors then and there present, but after a 
Ittg discussion thereupon, no resolution was come to or order made respecting the 
"•me, or the subject-matter thereof; and that the said Stephen Pry or, the younger, 
*U at the time when the writ of mandamus was applied for and issued, and thence 
^tinually had been and still was an inhabitant householder of the borough, contri- 
<iting to the borough rates. 

ITxe aflWavit filed in opposition to the rule was that of Charles Pestell Harris, the 
nm clerk of the borough, who swore that upon judgment of ouster being signed in 
lis Honourable Court in a ^o warranto information, filed against Joseph Jonathan 
^hton, for exercising the office of an alderman of the said borough, and which 
lament was signed on or about the 30th day of April last (being the judgment 
Mntioned in the affidavit of Charles Henry Cooper), this deponent, as town clerk, and 
ctiog on behalf of the council of the said borough, was desirous that the vacancy 
loertained by the said judgment to exist in the said office of alderman should be filled 
p by another election as soon as could legally be done. And that he, the deponent, 
Q behalf of the said council, without loss of time, consulted with counsel, who there- 
^ advised, that it was doubtful whether a valid election to supply the said vacancy 
Qold be made otherwise than\by virtue of a writ of ma»damus from this Court directing 
Qch election, and who advised the said council not ft proceed to fill up the said va- 
Qcy until a writ of mandamus should be obtained for that purpose, and that the costs 
f lach writ, if applied for and obtained, could not be legally paid out of the borough 
and ; that the council of the said borough were not by means of notice or requisition 
9 bim, the deponent, nor, as he believed, by any other means, after the signing of the 
lid judgment, and before the obtaining and service of the said writ of mandamus, re- 
itred to meet or proceed to an election for the purpose of supplying the said vacancy ; 
«t the said advice of counsel was acted upon ; that afterwards, the writ of mandamus^ 
entioned in the affidavit of Charles Henry Cooper, was issued out of this Court, and 
at, by virtue of and in obedience to the said writ, an election took place, the vacancy 
M siipidied, and a return to the writ filed ; that no opposition was offered or impedi- 
SBt miide ^ or on behalf of the said mayor, aldermen, and councillors, or any of 



17« MAGISTRATES' CAS£S. 

them I to the obtaining of the said writ of mandamus, or to the prosecution of the saiiK^ 
nor had they, or any one on their behalf, in any way acted so as to increase the costs ^ 
applying for or obtaining or prosecuting the said writ, but, on the contrary, the s^^/ 
council were desirous, by all lawful means, to supply such vacancy with all possibJb 
despatch. 

CromptoH now shewed cause. — ^The borough fimd is not liable for the payment of these 
costs, and the corporate officers would be guOty of a breach of trust if they paid them out 
of that fund. The stat. 1 Wm. 4, c. 21, s. 6, provides " That in all cases of applici. 
tion for any writ of mandamus whatsoever, the costs of such application, whether the 
writ shall be granted or refused, and also the costs of the writ, if the same shall be 
issued and obeyed, shall be in the discretion of the Court, and the Court is herebj 
authorized to order and direct by whom and to whom the same shall be paid;" but 
that only applies to costs between the parties ; and here the Mayor, Aldermen, and 
Councillors stand in the position of a third party. The 92nd section of the Munidptl 
Corporations Act (5 & 6 Wm. 4, c. 76) points out the application of the borough 
fund ; and provides that " such fund, subject to the payment of any lawful debt doe 
from such body corporate to any person, which shall have been contracted before the 
passing of this Act and unredeemed, or of so much thereof as the council of sudi 
borough from time to time shall be required or shall deem it expedient to redeem, 
and to the payment from time to time of the interest of so much thereof as shall 
remain unredeemed, and saving all rights, interests, claims, or demands of all persooi 
or bodies corporate in or upon the real or personal estate of any body corporate, bf 
virtue of any proceedings, either at law or in equity, which have been already insti- 
tuted, or which may be hereafter instituted, or by virtue of any mortgage or other- 
wise, shall be applied towards the payment of the salary of the mayor and recorder, 
and of the police magistrate hereinafter mentioned, when there is a recorder or poGce 
magistrate, and of the respective salaries of the town clerk and treasinrer, and of efoy 
other officer whom the council shall appoint, and also towards the payment of the ) 
expenses incurred from time to time in preparing and printing burgess lists, ivanl s 
lists, and notices, and in other matters attending such elections as are herein nea- f 
tioned ; and in boroughs, which shall have a separate Court of Sessions of the F^ioe, i 
as is hereinafter provided, towards the expenses of the prosecution, maintenance, and f 
punishment of offenders, and towards such other sum to be paid by such borough to j 
the treasurer of such county as is hereinafter provided, and towards the expense of main* ) 
taining the borough gaol. House of Correction, and corporate buildings, and towardi ) 
the pa3rment of the constables and of all other expenses not herein otherwise provided j 
for, which shall be necessarily incurred in carrying into effect the provisions of tiua ') 
Act." Now, •' the expenses incurred from time to time" in the various ways specified , 
in that clause, must mean expenses incurred by the corporation ; but the costs of thii ] 
mandamus are expenses incurred by the prosecutor — not by the corporation. [Pat- \ 
TBSOK, J.—- Suppose an action is brought and judgment obtained against the corpora* 
tion, how are the costs to be paid ?] There is a saving of *• all rights, interests, 
claims, or demands upon the real or personal estate of any body corporate, by virtoe 
of any proceedings either at law or in equity." [Pattesok, J.— If there is a prori- 
sion as to the payment of debt and costs, why should it not apply to the case of a 
mandamus?] The answer is, that this is not a proceeding against the corporation; 
after judgment of ouster on a quo warranto, a mandamus is obtained as a matter of 
course. In Reg. v. The Mayor, S^c. of Leeds (4 Q. B. 796, 1 D. & M. 143, 12 Law 
Jour. N. S. 369), the Court refused to order the corporation to pay the costs d a 
mandamMS out of the borough fund ; and that was a stronger case than the present; 
because there the question was really to try a right, in which the corporation were 
interested. There is no pretence here for saying that the corporation were in hxlU 
and if this is treated as an application against individuals, it is not shewn that tha 
defendants individually refused to do that which the tnandamus commanded. 

Gunning, contrk. — The corporation were in fault, but that is immaterial. After 
judgment of ouster upon the quo warranto, application was made to them to pro- 
ceed to a fresh election, and the relator was told that they did not intend to 
proceed ; and even if that had not been so, R, v. The Corporation of We$t iM 



HILARY T£RM, 1845. 177 

) Burr. 1386), and R, v. McKay (4 B. & C. 658), decide that the prosecutor is 
ititled to a priority of motion for the jnandamus, if he be guilty of no uu- 
aaonable delay. [Patteson, J. — Could they proceed to an election without a 
ndamusP] Yes, within ten days, but they allowed that time ta expire. [Lord 
UTMAN, C.J. — Do you impute it to them as a fault ?] Yes. [Lord Denman, C.J. 
•Then why are they to pay the costs out of the borough fund ?] The 92nd section 
the Act provides Uiat that fund shall be applicable, amongst other things, to " the 
.jment of the expenses incurred from time to time in preparing and printing Burgess 
sts, &c., and in other matters attending such elections as are herein mentioned ; " 
id the 27th section provides for elections in the case of extraordinary vacancies. 
Iiese costs therefore fall within that provision, or, at all events, within the subsequent 
irds, " all other expenses, not herein otherwise provided for, which shall be necessarily 
cnrred in carrying into effect the provisions of this Act." It is true, that at present, 
ese are not expenses incurred by the corporation, but they will become so as soon as 
ey have been paid by the treasurer, and then they may be properly charged on the 
longh fund. Besides, the question is, who aie substantially the parties to the writ ? 
i Beg. y. Peterhouse (1 Q. B. 314). application was made for pa3rment of the costs 
'^^numdamus, and that was opposed on the ground that the mandamus was applied for 
Siinst St. Peter's College, Cambridge, and not against the party from whom pa3rment 
« sought ; whilst the argument on Uie other side was that the master of Peterhouse was 
iktantially the party against whom the mandamus was moved ; and the Court made the 
de absolute. So in it. v. St. Saviour, Southwark (7 Ad. & £. 925, 950 ; 3 Nev. & P. 
26, 354 ; 1 W. W. & H. 105, 234), where a mandamus was directed to the church- 
vdens, overseers, and inhabitants of that parish, commanding them to call a vestry 
ad make a rate for the payment of certain salaries and the repair of the parish church, 
le Court, after quashing Uie return, ordered that the wardens, overseers, and inhabit- 
ib, should pay costs, but that the wardens and overseers should not be personally 
lUe, as such. In Es parte Tioiner (1 W. W. & H. 305), it was held that if distinct 
mands are made for pa3rment of two sums, and upon refusal, an application for a 
miamms is granted as to one sum, but not as to the other, still the applicant is entitled 
Ids costs. [CoLBKiDOB, J.—- Suppose a friend to the corporation had moved for the 
mdamus at their instance, the expense then would clearly have been caused by their 
n ocmduct ; could the borough fund have been charged in that case ?] That is a very 
Eefent case from the present, but it is apprehended tiiat even there the borough fund 
aid be so charged. Reg. v. I%e Mayor, SfC, of Leeds is quite distinguishable, 
erase there the dispute was between two burgesses ; here the very existence of the 
rporation is in question. 

LoBD DsKif AN, C. J.— 'This is an application to pay certain costs, rendered necessary 
' the delay of the defendants, out of the borough fimd, and the rule b drawn up 
r their payment " out of the borough fiind.'* Now, supposing that we were clearly 
opinion that these costs were payable by the defendants, and out of the borough fund, 
31 it seems to me that this is not the proper mode of drawing up the rule. It is not 
IT province to direct out of what fund the payment is to be made, though we may 
fink the corporation generally liable to pay. It is said, if we treat this as an applica- 
ou against individuals, these defendants have not individually refused; but that wiH 
t no answer, if we mould the rule, as we feel disposed to do, by striking out the 
iQids ''out of the borough fimd." The defendants then are not called upon as 
iTing ocmunitted any wrong as individuals, but they are called upon as a corporation 
)paj costs rendered necessary by their omission. The attorney's letter mentioning 
be borough fimd does not bind them ; and the rule mentioning tiie borough fund does 
ot bind us. We think this was certainly a matter attending and necessary to an dec- 
ioD, under the 92nd section, and therefore, striking out the words " out of the borough 
md,*' the rule must be made absolute, and with costs. 

FAmsoN, J. — I do not mean to say that these costs are not payable out of the 
orangh fond, but I object to the form of the rule. The Act (1 Will. 4, c. 21, a. 6) 
K8 not say that we have power to order payment to be made out of the borough fimd, 
od I think it ought not in any case to form part of our rule. Suppose an action of 
dl taoDi^ IB tUs Court ag^dnst a municipal corpoTation» would the judgment be. 



178 MAGISTRATES* GASES. 

•* Therefore, it is considered that the plaintiif should have judgment, that the debt at] 
costs be paid out of the borough fund ?'* And if not, why should a rule be diflfereu 
in its form ? 

CoLERioQE, J. (a)— concurred. 

Rule absolute for payment generally, wUh costs, (b) 
B, 



The Queen v. Ricbabo Francis Onslow, Clerk, and Richabd Foley Onslow, 

Esq., Justices, &c. 

Poingaion of Tenemenii Act — Application for tcarrant. 

When an application ii made to jwtieee for a warrant under 1^2 Vict, c, 74 {the Poue$ti(m rf 
Tenementi Act), and the party against whom, the application is made does not appear, the putiem 
are bound to require strict and regular proqf that all the requisites of the statute have been em- 
plied with. 

Where an application was made under that statute, and at the hearing the tenant did not eg^pear, M 
a person appeared on behalf 9f^ mortgagee of the premises, produced the mortgage deed, which tm 
shewn to the justices, and stated {but not on oath) that an ^ectment was pending in regard to the 
premises in question, and that the tenant had attorned to the mortgagee, but admitted that th 
mortgagor {the applicant) had given all the requisite notices i that the relation of landlord end 
tenant had formerly existed between the mortgagor and the occupier, and that that tewmeg wti 
determined, the Court held that the justices were not justified in receiving those statements tmi 
admissions as evidence on either side, the mortgagee having no authority to bind the eisest 
tenant ; and it appearing in the affidavits that the applicant did apply to them to receive his evideaet, 
and that thejustioes refused, a mandamus was issued, commanding them to hear; but a mandams 
commanding them to issue their warrant was refused. 

NEWTON, m last Michaelmas Term (23rd Nov.), obtained a rule calling on 
Richard Francis Onslow, clerk, and Richard Foley Onslow, Esq., two of the 
keepers of the peace and justices in and for the county of Gloucester, acting for the 
district or hundred of Botloc, in the said county, to shew cause why a writ of mos- 
damus should not issue, directed to them, commanding them to grant a warrant under 
their hands and seals to the constables and peace officers of the said district or hundred, 
commanding them to enter into a certain messuage, tenement, and premises, situate in 
the town of Newent, in the said county, and within the said district or hundred, in the 
occupation of Benjamin Lyes, and give possession thereof to the said Richard Farlejr, 
the landlord ; or to receive, hear, and adjudicate upon the information and complaint 
of the said Richard Farley against the said Benjamin Lyes for not giving up possesstoo 
of the smd messuage, tenement, and premises, pursuant to the provisions of the stat 
1 & 2 Vict. c. 74. 

The rule was obtained upon the affidavit of Richard Farley, the owner of the pre- 
mises, and John Guest, bailiff. From that affidavit it appeared diat about March, 1844, 
Benjamin Lyes became tenant to Farley of a house and premises situate in the town of 
Newent, at 2s. Id. per week; that on the 18th September following, Farley gave him 
notice to quit on the 28th, being the day of the week corresponding with that on vhicfa 
the tenancy commenced ; that the said Benjamin Lyes not having given up possession 
pursuant to that notice, he found it necessary to make application for recovery of the 
sud premises, under stat. 1 & 2 Vict. c. 74, and did accordingly cause the necessary 
notice in writing, signed by him, and bearing date the Slst day of October, 1844, to be 
served on the said Benjamin Lyes, requiring him to give up the possession of the said 
premises, and giving him notice that imlcss he did so, he, Richard Farley, should on 
Monday, the 11th November then next (being at the expiration of seven dear days 
after the service of the said notice), apply to her Majesty's justices of the peace acting 
for the district or parish of Botloe, in the said county of Gloucester, being the district 
in which the said premises are situate, in petty sessions assembled, to issue their war- 

(o) Wightman, J. was absent, 
(ft) See Hey. V. The Mayor qf Bndjfewater, 10 Ad.&£.281; R,y.Pmwnm, 10 Ai. & £• 286. 



HILARY TEBMi 1845. 179 

t directing the constables of the said district or hundred to enter and take possession 
;he said last- mentioned messuage or tenement and premises, and to eject any person 
refrom, and that that notice was duly served on the 1st day of November, by the 
1 John Guest ; that tlie said Richard Farley, accompanied by the said John Quest 
I by William Wise, his solicitor, did attend at the magistrates' office in Newent, on 
tnday, the 11th November last, to make the said application ; that the only justices 
the peace then and there present were the Venerable Archdeacon Richard Francis 
slow, clerk, and Richard Foley Onslow, Esq., his son : that the said Benjamin Lyes 
not attend at the said petty sessions, nor did any person on his behalf, to shew cause 
dust the said application ; but that on the said William Wise opening the case on 
lalf of the said Richard Farley, a young man, who stated himself to be a clerk in the 
ce of Messrs. Richards and Thomas, solicitors, of Newsbury, stepped forward and 
9rmed the justices that he appeared there on behalf of one Mrs. Charlotte Archer, a 
•rtgagee of the said premises, and for her to oppose the granting of the said warrant 
possession, alleging that Mrs. Archer, as such mortgagee, had lately taken pos- 
sion of the said premises, and that the said Benjamin Lyes had given up possession 
the said premises to some person on her behalf, and that that person was then in pos- 
«ion under her : that the said William Wise thereupon informed the said justices 
it no one was in possession by any authority of or under the said Richard Farley, 
d that as this was a dispute between the said Richard Farley, as owner, and Benjamin 
es, the tenant, the said Mrs. Archer, or any person on her behalf, had no right to 
pear before the said justices in opposition to the application : that the said justices 
id, as, from what the clerk so stated on behalf of the mortgagee, the business was so 
xed up as to the right of possession, that they the said justices refused to hear the 
plication ; but the said William Wise thereupon stated to the justices, as the fact 
IS, that the said Richard Farley was prepared to prove, by the evidence of the said 
chard Farley and John Guest, that the said Benjamin Lyes was the tenant of the said 
chard Farley, and had paid rent to him for the said premises down to a very late 
riod ; that notice to quit and of the then application to the said justices had been 
ly served ; and the said William Wise thereupon contended and urged upon the said 
itices to hear the application and evidence in support of it, at the same time deliver- 
^ into the hands of Mr. Thomas Cadle, the clerk to the said justices, the information 
idy drawn out to be exhibited to the justices, together with a copy of the notice at- 
jhed thereto, for the appearance of the said Benjamin Lyes at the said petty sessions, 
d that the said Richard Farley and John Guest were present to give such evidence 
lordingly : that the said clerk representing Mrs, Archer then declared, he admitted 
li the said Benjamin Lyes was the tenant in possession prior to the possession so taken 
or on behalf of Mrs. Archer, and that the notice to quit and of the application to the 
iices, had been served, and that the said Richard Farley's case as landlord was all 
Tect, but the said Mrs. Archer was entitled to the possession as mortgagee, and that 
ejectment had been served upon the said Richard Farley, for the recovery of the 
d premises : that the said William Wise did thereupon require and demand of the said 
rk {who appeared to represent the said Mrs. Archer), that he would produce and give 
evidence the mortgage-deed under which Mrs. Archer claimed, but the said clerk 
oily refused to produce it in evidence, and did not nor would allow the said William 
Ise to inspect the same: that the said William Wise did then urge and contend 
it there being no proof given of the mortgage whatever, or other right of the said 
re. Archer to the premises in question, and the tenancy of the said Benjamin Lyes, 
3 notice to quit, and the notice of application, all being admitted, the said Richard 
rley ought to have granted to him the warrant of possession of the said premises au- 
3rized by the said Tenement Act, but the said justices refused to grant the said 
irrant : that the said William Wise repeated his application to them to hear the 
Be, but they persisted in their refusal, alleging as their reason that they were not 
mpelled to hear the same under the said Tenement Act, but they might do as they 
sased, and that they would not interfere, but that the said Richard Farley might pro- 
sd by ejectment without them: that the said William Wise then informed the 
itioes, in a respectful manner, that he considered they were bound to act in and hear 
t case, and that if they persisted in refusing to do so, or to grant a warrant, an 



l60 MAGISTRATES* CASES. 

application would be made by the t-aid Richard Farley to the Court of Queen s Beixc 
for a mandamus to compel them to grant such warrant of possession, or to hear and biq 
judicate upon the said case. The material parts of the affidavits filed in oppositioi 
to the rule were as follows : — 

The afiidavit of Joshua Thomas, the attorney of Mrs. Archer, set out a mortgage of 
the premises in question by Richard Farley to Charlotte Archer, and stated that 
the interest of the sum of 120/. secured thereby having become very much in anear, 
and the said Richard Farley having neglected and re^ed to pay the same, thongli 
often required so to do, the said Charlotte Archer entered into possession of the rents 
and profits of the said premises : that subsequently the said Richard Farley obtained 
possession without the knowledge or consent of the said Charlotte Archer, and let tiie 
house in question to Benjamin Lyes : that on the 4th September a notice was served on 
the said Benjamin Lyes to pay his rent to the said Charlotte Archer: that subsequently 
the actual possession was delivered up to a person appointed to receive the same on 
behalf of Mrs. Archer, and forcible possession having been taken of a portion of the 
mortgaged property (not the house in question), a declaration in ejectment had been 
served upon the said Richard Farley to recover possession of the whole : that at tiie 
time the notice was given by Richard Farley of his intended application to the magis- 
trates, and thence to the hearing of that appUcation, one John Chandler continaed m 
possession of the house in question on behalf of the said Charlotte Archer, and the said 
Charlotte Archer still continues to hold the same : that having heard of the intended 
application to the magistrates, he sent a clerk, named Lawriston Winterbotham Lewis> 
with the mortgfige-deed to attend the hearing of the case and oppose the issuing of die 
said warrant on the part of the said Charlotte Archer. 

The affidavit of lawriston Winterbotham Lewis stated that he attended the jostioes 
at Newent on the 1 1th November last, as the clerk of the said Joshua Thomas, to qp* 
pose the issuing of the warrant of possession : that after Mr. William Wine bad stated 
the nature of his application, he, this deponent, informed the justices that he appeared 
on behalf of Mrs. Archer, the mortgagee, to oppose the issuing of the warrant : that 
the said Mr. William Wise then informed the justices that they had nothing to do 
with the mortgagee, and claimed and insisted upon going into his case on behalf of tlie 
said Richard Farley : that this deponent then stated to the justices that he w<u fadf 
wiiling to admit that the said Benjamin Lyes was the tenant of the said Richard lirkg 
prior to the possession since taken by or on behalf of the said mortgagee, and that a notiee 
to quit and of the application to the justices had been served; whereupon the said Mr. 
Wise declared that the whole of his case was admitted, and that the said justices had 
nothing then to do but to grant the said warrant of possession : that tins deponent 
then stated that his defence to the issuing of the warrant was, that an the possession ol 
the said premises had been taken by or on behalf of the said mortgagee, and as she «ai 
entitled to such possession under the mortgage deed, which he, this deponent, th^ pro- 
duced to the justices for their inspection, that as there was a considerable arreard 
interest due upon the said mortgage, and that as an action of ejectment was then pend- 
ing in the Court of Queen's Bench against the said Richard Farley, at the suit of die 
said mortgagee, to recover possession of the said premises (which said action the said 
William Wise and Richard Farley then admitted to be so pending), that therefore thef. 
the said justices, ought not to issue their said warrant of possession to the said Riduod 
Farley : that the Rev. Archdeacon Onslow, after consulting with the other justice thai 
present, declared that it appeared to them, from the representations made by thii 
deponent, and from the fact that there was then depending in the Court of Queen'i 
Bench an action against the said Richard Farley at the suit of the said mortgagee, tx 
recover possession of the said premises, that they should be getting themselves inb 
difficulties by so granting the said warrant of possession, and thereupon decided tha 
they should not do so. 

The affidavit of Edmund Edmonds, assistant magistrates' clerk at the petty sesaon 
at Newent, stated that, on the SOth of September, 1844, the said Richard Farley nf 
plied for and obtained a warrant for the recovery of possession of a messuage or tew 
ment and premises, situate at Newent, in the occupation of one Eliza Turner, nn 
under that warrant took forcible possession : that on the 11th of November foDowmi 



HILARY TERM, 184^ 181 

the applicatioxi in question was made, as stated in the previous affidavits, and that 
after the opposition stated on the part of the mortgagee, the justices said that they 
would rather not be called upon to decide a matter so mixed up with legal difficulties 
as to the right of possession ; but that if they were bound to do so, they would. After 
setting oat the previous facts in nearly the same language as the previous affidavit, it 
tim proceeded to state, that the justices consulted togetiier, and with this deponent, 
who informed them that, as it had been stated by the said clerk representing Mrs. 
Archer* and admitted by the said William Wise and Richard Farley, ihdX an action of 
ejectment for the recovery of the said premises was so as aforesaid pending, be con- 
fidered that their jurisdiction was ousted by it, the very title to the said premises being 
tiien under litigation in a superior court : that the said Archdeacon Onslow then 
itited, that from the representations made to them on behalf of Mrs. Archer, as well 
IB from the production of the deed, and from the admitted fact that an action of 
qectment was pending to recover the same premises, it appeared to them, the said 
jutices, that they should be getting into difficulties by granting a warrant, as it might 
torn out on the trial of the ejectment, that Mrs. Archer was alone entitied to posses- 
aoD : that when the said William Wise informed the justices that an application 
imdd be made to the Court of Queen's Bench for a moHdamus to compel them to grant 
the warrant, the justices replied that they had heard and disposed of the case : that 
Die said case and application occupied more than three-quarters of an hour, and, in the 
opimon of the deponent, the said justices did hear the said case and application, but 
Mined to grant the warrant on the ground that the titie to the said premises was 
tlK& under litigation between the said Richard Farley and the said Mrs. Archer, in 
the Court of Queen's Bench. 

The affidavit of the Venerable Archdeacon Onslow, and Richard Foley Onslow, 
bq., stated, that in deciding not to grant the warrant of possession applied for by the 
«id Richard Farley, they considered all the facts alleged by the said William Wise, on 
behalf of the said Richard Farley, and admitted by l^e psurty appearing for the mort- 
flgee, an fects proved in the case ; but as there appeared to these deponents strong 
neuoQ to belieye that the premises in question were mortgaged, as alleged, and as it 
las admitted by the said William Wise, on behalf of the said Richard Farley, that an 
iction of ejectment was then pending in the Court of Queen's Bench, at ijie suit of 
he mortgagee, against the said Richa^ Farley, in respect of the said premises, and the 
%fat to the possession thereof, these deponents considered the case was not such a 
iise as the statute contemplated, and upon that ground refused to grant the warrant. 

Keating now shewed cause.— The first question is, whether the issuing of a warrant, 
nder the 1 & 2 Vict. c. 74, is a judicial or a ministerial act ; and there can be 06 
kmbt that it is judicial. The Act recites that, " Whereas it is expedient to provide 
inr the more speedy and effectual recovery of the possession of premises unlawfully 
beld over after the determination of the tenancy," and then proceeds to enact, that 
iftor the passing of that Act, " when and so soon as the term or interest of the tenant 
of any house, land, or other corporeal hereditaments, held by him at vnll, or for any term 
not exceeding seven years, either without being liable to the payment of any rent, or 
It a rent not exceeding the rate of 20/. a year, and upon which no fine shall have been 
iMerved or made payable, shall have ended or shall have been duly determined by a legal 
mttce to quit or otherwise, and such tenant, or (if such tenant do not actually occupy 
fc premiies, or only occupy a part thereof) any person by whom the same or any 
put tiiereof shall be then actually occupied, shall neglect or refuse to quit and dehver 
19 posseaaion of the premises, or of such part thereof respectively, it shall be lawful for 
tbe landlord of the said premises, or his agent, to cause the person so neglecting or 
nfoimg to quit and deliver up possession to be served (in the manner hereinafter 
mentioned) with a written notice, in the form set forth in the schedule to this Act, 
q;ned by ^e said landlord, or his agent, of his intention to proceed to recover posses- 
■OQ wider the authority and accordmg to the mode prescribed in this Act ; and if the 
enant or occupiers shall not thereupon appear at the time and place appointed, and 
hew, to the satisfaction of the justices hereinafter mentioned, reasonable cause why 
loaecBMon sbonld not be given under the provisions of this Act, and shall still neglect 
r rdfiue to deliver up possession of the premises, or of such part, &c. shall be law- 



182 MAGISTRATES* GASES. 

ful for such landlord or agent to give to such justices proof of the holding, and of the 
end or other determination of the tenancy, with the time or manner thereof, and when 
the title of the landlord has accrued since the letting of the premises, the right by which 
he claims tlie possession ; and upon proof of service of the notice, and of the neglect or re- 
fusal of the tenant or occupier, as the case may be, it shall be lawful for the justices 
acting for the district* division, or place, within which the said premises or any part 
thereof shall be situate, in Petty Sessions assembled, or any two of them, to issue a 
warrant, under their hands and seals, to the constables and peace officers of the districtf 
division, &c., commanding them, within a period to be thereui named, not less than 
twenty^one, nor more than thirty clear days from the date of such warrant, to enter (ftjr 
force, if needful) into the premises, and give possession of the same to snch landlord or 
agent." The justices, therefore, are to be satisfied that the notices have been given, and 
that certain facts exist, before they issue their warrant ; that shews that the act of 
issuing is judicial ; and it is so even if the tenant does not appear ; for in no case is 
the proof dispensed with. The Act authorizes the party in possession of the warrant 
to enter the house by force, if necessary ; which also establishes that the office of 
issuing such a warrant cannot be merely ministerial. That being the case, the jasticeB 
were not bound to grant the warrant ; they exercised their judgment, and the Court 
will not interfere ; but it is admitted that they were bound to hear the case ; and the 
second question is, whether they did or did not hear it. The Court might infer, even 
from this application, that the case had been heard ; for without a hearing, the warrant 
certainly could not issue, and this is an application, in one of its terms, that 
the warrant may issue ; but upon the affidavits it is dear that the case was heard* : 
The applicant stated his case, and all the facts which he stated were admitted by the i 
person who appeared for the mortgagee ; but the justices having seen the mortgage- I 
deed, though it was not regularly given in evidence, and heard that the parties in 
possession had attorned to the mortgagee, decided that they could not interfere. 
[Lord Dbnman, C. J. — Supposing that the attornment had changed the landkiid, 
should not the party applying have had the opportunity of seeing the process hj 
which it was done ?] It is not contended that the mortgagee made out a dear case ; 
to do that, he must have proved the mortgage-deed ; but that was not necessary ; kx ^ 
even if the justices have erroneously said that the case vna not within the statute, tfaef ; 
are the judges, and this Court will not interfere. But their decision was right: an 
ejectment was stated to be pending ; that fact was admitted by the attorney for the 
applicant ; and the mortgage deed was shewn to the justices. A mortgagee may, st 
any moment, treat the tenant let in after the mortgage as a trespasser ; indeed, it 
baa been held that a simple notice to the tenant, under those circumstances, operates 
as an attornment to the mortgagee on the terms on which the tenant was let in by 
the mortgager ; but at all events the mortgagee may treat him as a trespasser.(a) 
Then no evidence was tendered by the applicant and refused. [Patteson, J.— The 
justices did not swear either the party applying for the warrant, or the party appearing 
for the mortgagee.] The applicant insisted that his case was admitted, and that, 
therefore, the justices ought at once to have issued the warrant ; that was his appli- 
cation, — ^to issue the warrant, not to hear. [Pattbson, J. — The fact is, that no 
evidence was given on either side.] No witnesses were sworn, certainly ; but the 
facts were taken as admitted ; that is a frequent practice in all courts, and the justices 
had a right to proceed on these admissions. How was the applicant prejudiced? The 
justices assumed all the facts which it was necessary for him to prove in order to 
entitle himself to the warrant ; but other matter was brought before them, in consC' 
quence of which they considered that they ought not to issue it. [Pattbsok, J.— 
What right had the mortgagee to bind the occupier, who was not present, by his 
admissions ? The justices took the mere statements on either side as fticts.] It may 
be admitted that the statements of the mortgagee could not bind the occupier in lus 
absence ; but these statements were in favour of the applicant, on whose behalf the 

(a) See Moss v. Gallimore, 1 Dougl. 279 ; Par^ N. R. 9; Doe d. Hughes v. Bueknell, 8 Car. & P. 

tridffe v. Bere, 1 D. & R. 272, 5 B. & A. 604 ; 566 ; Rogers v. Hunffrevs, 4 Ad. & S. 299, 6 Net. 

Doe d. Rohy v. Maisey, 8 B. & C. 767, 3 M. & R. & M. 611 ; Evans v. EUMt, 9 \d. & B. 349, 1 

107 ; Brown t. Storey^ 1 Man. & G. 117> 1 Seott, Per. & D. 256. 



HILARY TERM, 1845. 183 

escnt rule has been obtained. Suppose the mandamus were to issue, what more 
»uld the justices do ? [CoLERiDCtE, J. — They niiiy hear the case upon proper evidence. 
3r this purpose the mortgagee may be put out of the question ; the party against 
!iom the application was made was not present ; and then the justices take the 
itement of a stranger, instead of proof.] The applicant cannot take that objection ; 
waived it before the justices by stating that his case was admitted, and calling 
on them at once to issue their warrant. 

Newton, in support of the rule. — Fhrst, tlie justices ought to have issued their war- 
nt; and this Court will now compel them to do so. The Act contemplates a third 
rty coming in and disputing the title ; but it expressly provides that " if the tenant 
occupier shall not appear," then it shall be lawful for the landlord to give his proof 
d for the justices to issue their warrant. [Lord Dbnmak, C. J. — What is the 
idence which entitles you to the warrant ? You must satisfy us that proof was given 
all that the Act requires.] If the Court considers that no regular evidence was 
ren, then the justices have not heard the case, and the mandamus must go for that 
ipose. The dispute as to the mortgage must be thrown out of the case ; for even if 
had been satisfactorily proved, it was wholly beside the question ; the only question 
log, whether the relation of landlord and tenant had subsisted between the applicant 
d the person against whom he had applied, whether that tenancy was at an end, 
d whether the tenant had refused or neglected to give up possession. At all events, 
e affidavits shew clearly an application, and a refusal to hear the evidence. 
Lord Dsnman, C.J. — I think this rule must be made absolute in one of its terms. It 
dear that we have no right to call upon the justices to issue their warrant ; but it is 
iially clear that the applicant did apply to them to hear and adjudicate, and that they 
jfat to have done so. No doubt they formed an opinion about the mortgage-deed ; 
L the mortgagee had no right to make any admissions to the prejudice of the occu- 
r, and that being so, it is perfectly clear that the applicant did offer to prove facts 
ich might have formed a case for the issuing of the warrant. It is not a sufficient 
iwer to say that the applicant also called on them to issue their warrant ; they were 
; bound to do that, but they were to hear. 

Patteson, J. — ^When the application was made to them, their answer was, " We are 
t bound to hear ;* they put their objection on the wrong ground. If they had con- 
ited to hear the case, it would not have followed necessarily that the party should get 
i warrant. The magistrates might have adjourned the hearing, to give time to prove 
i mortgage. 
CoLBBiDGE, J., and WiGHTMAX, J., concurrcd. 

Rule absolute, to hear. 
B. 



Q.B. Wednesday, January 15. 
TuK Queen v. The Justices of Hertfordshire. 

^ktt ought not even to sit upon the bench during the hearing of a case in which they hove any interest, 
hufner smalt ; and if interested parties take any part in the decision of the Court, it vitiates the 
9koie proceedings. Therefore, where, upon the trial qfan appeal against an order under the High- 
**jf Act, directing a surveyor qf the highways to pay a certain sum to the commissioners of a 
eertttiH turnpike trust, or their treasurer, one qf the justices who made the order, and was therefore 
nspondent in the appeal, and another justice who was a creditor of the turnpike trust in question, 
ttre held disqualified from taking any part in the decision of the case; although the money ordered 
fe be paid was directed to be applied to the actual repair qfthe road. 

e farmer qfthem retired brfore the case was closed, and did not vote ; but, during the progress qf 
he ease, was seen conversing with the other justices : — Held, that it might be presumed that he was 
msersing about the case, and that, therefore, his interference would render the decision invalid, 
• Utter took a very small part in the discussion, but voted ; and it was held that the decision was 
Uogetker void, although the order was con^rmed by a majority often to two, 

^ last Easter Term (6th May), Hawkins obtained a rule, calling upon the justices of 
HertfordBhire to diew cause why a writ of certiorari should not issue, directed to 



184 MAGISTRATES* CASES. 

them, to remove into this Court an order made at the General Quarter Sessions of the 
Peace, holden at Hertford, in and for the said county, on the 8th day of April then last, 
upon the appeal of James Smyth, against an order, under the hands and seals of two of the 
said justices, for the payment of a sum of 9/. 5s. by the surveyor of the highways of the 
parish of Bygrave, in the said county, to the Commissioners of the Baldock and Boura- 
bridge Turnpike Trust, or to their treasurer, to be laid out in the actual repair of 
such part of the said turnpike road as was within the said parish. That rule was ob- 
tained upon the affidavits of James Smyth and Thomas Wortham, his attorney ; which 
stated that the said James Smyth, as the surveyor of the highways of the said parish 
of Bygrave, did at the General Quarter Sessions of the Peace, holden at Hertford, on 
the 16th day of October, 1843, duly commence an appeal against a certain order under 
the hands and seals of the Rev. Henry Morice, clerk, and John George Fordham, Esq., 
two of her Majesty's justices of the peace in and for the said county, which said 
appeal was, on the motion of counsel, on behalf of the respondents, the said Uenxj 
Morice and George John Fordham, duly, from time to time, respited until the Oenenl 
Quarter Sessions of the Peace, which were holden in and for the same county* on Mon- 
day, the 8th day of April last : that at the General Quarter Sessions of the Peace, 
holden at Hertford, in and for the said county of Hertford, on the said 8th day of Anril j 
last, the said appeal came on to be heard before Thomas Mills, Esq., one of oer I 
Majesty's justices of the peace for the said county, and Deputy Chairman of the said | 
Court of Quarter Sessions, and certain other justices of the peace for the said county: - 
that amongst the last-mentioned justices there were present upon the bench doiiBg f 
the trial and hearing of the said appeal, the said John George Fordham, Esq., and r 
Robert Fitzjohn, Esq., who then were and still are two of her Majesty's justices of the ^ 
peace for the said county, the said John George Fordham being one of the respondents 
in the said appeal, and one of the justices under whose hand and seal the said original 
order was made, and being also, as the deponents had been informed and believol, t 
creditor of the said Baldock and Boumbridge Turnpike Trust, and being consequently ^ 
interested in the result of the said appeal : that the said John George Fordham vu 
present during the whole of the time of the trial of the said appeal, which lasted, as neir 
as the deponents could recollect, for about three hours : that during the said trial and 
hearing of the said appeal they several times observed the said John (George Fordhaa *■ 
upon the bench, and engaged in earnest conversation with other of the said justices ^ 
who were then sitting on the bench for the trial and hearing of the said appeal, but tiie ^ 
subject of such conversation they did not hear, although, ft-om the manner and demeanour 
of the said John George Fordham, they verily believed that the said John Geoige . 
Fordham was conversing and communicating with the other justices upon the sabject 9 
of and respecting the said appeal : that the said Robert Fitzjohn, during the trial of the ^ 
said appeal, also sat upon the bench as a justice of the peace for the said county, and j 
took a part in the discussion and investigation thereof, and that the said Robert FitK« r 
John was then, as the deponents had been informed and verily believed, interested in the -> 
matters in question in the said appeal, inasmuch as he was, as they had been informed -" 
and believed, a creditor of the said Baldock and Boumbridge Turnpike Trust in the said 
original order mentioned, and had then divers large sums of money due and ovring to 
him, solely upon the security of the tolls of the said turnpike trust, to repair a portkm 
of the roads of which, the said sum of 9/. 5s. was ordered to be paid to the Com- 
missioners of the said trust, or to James Piggot, their treasurer : that after hearing ti^ 
case and the evidence both for the said James Smyth and the respondents, and before 
giving judgment on the said appeal, the said Thomas Mills and most of the said otiier 
justices who had been upon the bench during the hearing and trial of the said appeilf 
and amongst other justices the said Robert Fitzjohn, retired out of the court into t 
private room thereto adjoining, for the purpose, as the deponents verily believed, of dii* 
cussing further among themselves the merits of the said appeal — ^but whether ornot ^e 
said John George Fordham retired into the said private room with the siud Thomu 
Mills and the said other justices the deponents were unable to say— >aiid after bdng 
absent for a few minutes, the said Thomas Mills and the said other justices, who had 
so retired with him returned into Court, and the said Thomas Mills then prononnoid 
the judgment of the said Court on the said appeal to be, that the said order Bhoald be 



HILARY TERM, 1845. 185 

mfirmed, contrary to the expectation of every person in the said Court who had heard 
le evidence ; whereupon some general discussion took place between the respective 
iunsel.for the said James Smyth and the respondents respecting the costs of the 
id appeal, when it was stated on the behalf of the respondents that they themselves 
nre personally liable to pay the costs incurred in supporting their order against the 
id appeal; and thereupon the said Court of Quarter Sessions confirmed the said 
iginal order of the said Henry Morice and John George Fordham, with costs, to be 
id by the said James Smyth to the said respondents ; and that they, the deponents, 
1 not, either before or at the time of the hearing of the said appeal, give, nor had they 
any time given, nor to the best of their knowledge and belief did any other person 
1 their behalf give their sanction or assent, either expressly or impliedly, or in any 
umer whatever, either by word or by deed, to the interference of them, the said John 
eorge Fordham and Robert Fitzjohn, or of either of them, on the hearing of the said 
peal, or to their joining or taking any part whatever in the discussion or determination 
ereof : that they were not aware that the said John George Fordham was present on 
e bench with the said Thomas Mills and the said other justices when the trial of the said 
peal commenced, nor until they saw the said John George Fordham actually conversing 
;th the said other justices, or they would have objected to the said John George Fordham 
naining upon the bench during the time of the hearing and trial of the said appeal, or to 
staking any part whatever in the discussion thereof, or to his addressing any observations 
,(»rto his holding any conversation or communication with any other of the said justices 
ring the hearing and trial thereof ; and that they did not until after the hearing and trial 
the said appeal, and the making the said order of the said Court of Quarter Sessions 
ireupon, discover, nor were they till then aware, that the said Robert Pltzjohn had 
f interest whatsoever in the said turnpike trust, or in the tolls thereof, or that he 
B a creditor thereof, as thereinbefore mentioned, or they would at the hearing and 
d of the said appeal have objected to his acting as a justice, or taking any part in 
discussion or determination thereof; and the said deponents further said that the 
i respondents in the said appeal objected to its being heard by the Most Noble the 
;rqui8 of Salisbury, the Chairman of the said Quarter Sessions, on the ground that 
was interested in the said appeal, having a considerable quantity of land in the said 
ish of Bygrave, and the same vms, in consequence, heard by the said Thomas Mills, 
Deputy Chairman : that at the time when the order of the said Henry Morice and 
in George Fordham was made, the said James Smyth was, and up to the present 
£ had been, surveyor of the highways of the said parish of Bygrave, and was the 
reliant in the said appeal against the said order, and that it was on his behalf that 
ice of motion for a certiorari had been given to the said justices. 
rhe following affidavits were filed in answer to the rule : 

' John Greo. Fordham, of Royston, in the county of Hertford, one of her Majesty's 
does of the peace in and for the said county of Hertford, maketh oath and saith, 
it he is not nor has he ever been a creditor upon the tolls of the turnpike road from 
Idock to Boumbridge, called the Baldock and Boumbridge Trust, mentioned in a 
tain order under the hands and seals of the Rev. Henry Morice, clerk, and this 
[WDent, made at a Special Session for the highways, holden at the Bull Inn, at Roy- 
n, in and for the division of the hundred of Odsey, in the county of Hertford, on 
! 21st day of June, 1843, whereby it was ordered, that the sum of 9/. 58., bemg 
lortion of the rate or assessment levied or to be levied by virtue of the statute passed 
the 6th year of the reign of his late Majesty King William the Fourth, intituled 
[r Act to consolidate and amend the Laws relating to Highways in that part of 
eat Britain called England," should be paid by the surveyor or surveyors of the high- 
JM of the said parish of Bygrave, on or before the 1st day of August, 1843, to the 
mmiasionera of the said turnpike trust, or to Mr. James Piggot, of Royston, in the 
m^ of Hertford, their treasurer, such sum of 91. 5s. to be wholly laid out in the 
Old repair of such part of the said turnpike-road as lies within the said parish of By- 
ve, from which the same was to be received ; and this deponent further saith, that 
was present at the General Quarter Sessions of the Peace, holden at Hertford, in 
i for the county of Hertford, on the 8th day of April last, when an appeal by James 
jrthy the suryeyor of the highways of the said parish of Bygrave, against the said 



ISO MAGISTRATES' CASES. 

order came on to be heard before Thomas Mills, Esq., and certain other justices of the 
peace for the said county of Hertford ; and this deponent was on the bench only 
during part of the hearing of the said appeal, but that he left the court long before the 
hearing of the said appeal was concluded, and did not take any part in the determina- 
tion of the Court thereon." 

" Robert Fitzjohn, of Baldock, in the county of Hertford, Esq., one of her Majesty's 
justices of the peace in and for the said county of Hertford, maketh oath and 8aith,that 
he was present at the General Quarter Sessions of the Peace, holden at Hertford, in and 
for the county of Hertford, on the 8th day of April last, when an appeal by James 
Smyth, the surveyor of the highways of the parish of Bygrave, in the said county of 
Hertford, against an order, &c. (setting it out as in Mr. Fordham's affidavit), came on 
to be heard before Thomas Mills, Esq., and certain other justices of the peace for the 
said county of Hertford. And this deponent further saith, that he did not take any 
active part in the discussion of the merits of the said appeal, or in promoting the dc- 
termination of the Court thereon, [the only observation made by this deponent during 
the hearing of the said appeal having been to call the attention of the chaurman to the 
fact that the appellant had not attended the magistrates at Special Session to object 
to their making the said order.] but merely gave his vote as a magistrate of the said 
county, as he conceived himself fully entitled to do. And this deponent further saith, 
that after hearing the evidence for the appellant and respondents, and before giving 
judgment in the said appeal, the said Thomas Mills, and the other justices then on the 
bench, retired out of the court into a private room for the purpose of discussing and 
considering the merits of the said appeal ; but this deponent took no part in sndi 
discussion, save as aforesaid, although he gave his vote in favour of confirming the said 
order. And this deponent further saith, that, to the best of his recollection and belief, 
there were about twelve magistrates who retired into the said private room, as afore- 
said, and that all of them but two concurred in opinion, and voted in favour of confirming 
the said order." 

The order of Quarter Sessions was as follows : 

•' Whereas at the General Quarter Session of the Peace, holden in and for the county 
of Hertford, on the 16th day of October now last past, an appeal was made by James 
Smyth, surveyor of the highways in the parish of Bygrave, in this county, against a 
certain order under the hands and seals of the Rev. Henry Morice, clerk, and John 
George Fordham, Esq.. two of her Majesty's justices of the peace for this county, 
made at a Special Session holden at the Bull Inn at Royston, in and for the division 
of Odsey, in this county, on the 21st day of June, then last past, for the payment by 
the surveyor or surveyors of the highways of the said parish of Bygrave, to the Com- 
missioners of the Baldock and Bournbridge Turnpike Trust, or to Mr. James Piggot, 
their treasurer, of the sum of 9/. 5s. towards the repairs of the said turnpike road, 3 
being a portion of the rate or assessment levied or to be levied by virtue of an Act ^ 
passed in the 6th year of the reign of his Majesty King William the Fourth, intituled ^ 
"An Act to consolidate and amend the Laws relating to Highways in that part of ' 
Grreat Britain called England ;" and the grounds and cause of such appeal were,— 
That the money paid the then last year by the said Parish of Bygrave towards the re- 
pair of the said turnpike road had not at all been expended upon that part of the said 
turnpike road in the said parish of Bygrave ; that there were sufficient materials then 
already provided on the sides of part of the said turnpike road, in the said parish of 
Bygrave, or adjoining thereto, as would be sufficient for the repair of the same for one 
year from the 3rd day of July, 1843 ; that the said rate had not been duly made, 
allowed, and published as the law directs, and that the said rate was unfair, unequal, 
and unjust ; and upon the application of counsel for the said respondents, and with the 
consent of counsel for the said appellants, the Coint ordered that the hearing of tiie 
said appeal should be and the same was respited until the then next General Quarter 
Sessions of the Peace to be holden for this county, and the Court further ordered Aat 
the said respondents should, on sight of that order, pay, or cause to be paid, to the said 
appellant, the sum of 61. 138. 2d. for his reasonable costs and expenses incurred by 
reason of the respiting of the said appeal. And whereas at the last General Quarter 
Session of the Peace, holden in and for this county, on the Ist day of January now last 



UILAUY TERM, 1845. 187 

past, the Court, upon the application of counsel for the said respondents, and with the 
consent of counsel for the said appellant, ordered that the hearing of the said appeal 
should be and the same was further respited until tliis present Session. And the 
Court further ordered that the said respondents should, on sight of that order, pay, or 
cause to be paid, to the said appellant the sum of 4/. 6s. for his reasonable costs and 
expenses incurred by the reason of the further respiting the said appeal. Now this 
Court, upon hearing counsel and evidence for the same respondents, and also counsel 
and evidence for the said appellant, confirms the said recited order as made by the 
said two justices as aforesaid. And doth order, that the said appellant do, on sight of 
this order, pay, or cause to be paid, to the said respondents, the sum of 19/. 10s. lOd. 
for their reasonable costs and charges in relation to the said appeal." 

Wordsworth now shewed cause. — ^The rule was obtained on the ground that there 
had been malversation on the part of the justices who tried the appeal, and that the 
orders were defective ; but the former is the ground mainly relied on. The affidavits 
of Mr. Fordham and Mr. Fitzjohn completely answer that ground of application. In 
the first place, Mr. Fordham denies that he is a creditor of the turnpike trust ; and 
he says expressly, that he sat on the bench during a part of the hearing only, did not 
tdce any part in the hearing, and left before the determination of the case. [Lord 
DiKMAN, C.J.— The statement that he was a creditor of the turnpike trust is cer- 
tainly fully answered ; but another part of the charge is, that he was in frequent con- 
Tersation with the other justices. In answer to that, he only says that he left before the 
determination of the case ; and it is quite consistent with Uiat, that he may have 
exercised a very active interference in the matter.] A charge of that nature ought to 
he specifically made, and not left to vague inference. [Lord Denman, C.J. — ^There is 
no imputation of improper motives, but, in point of fact, Mr. Fordham was a party 
hefore the Court ; a probable case is made out that he interposed during the hearing of 
his own case, and the question is, is that answered ?] It is difficult to see how he was 
& party ; he was one of the justices who made the order ; that was the whole interest 
he had in the case. [Lord Denman, C.J. — Might not the justices who made the 
order be called upon personally to pay the costs ? And, if so, can it be said that tlicy 
wre not parties ?] Not parties properly so called, though they may have some col- 
lateral interest in the case ; it may be admitted that they ought not to interfere and 
take part in the decision, but there can be no objection to their remaining on the bench 
duriiig the hearing of the appeal. [Coleridge, J. — They could not vote.] Probably 
not; and Mr. Fordliam did not. But at all events the conduct of magistrates is not to 
^ lightly questdoned ; and if a party wishes to set aside the order of a competent 
tribunal on the ground of misconduct in the magistrates, the members of this tribunal, 
^ ought to make out his case clearly and conclusively ; mere simnises are not suffi- 
Qent even to call for an answer from a magistrate. Now the affidavits in this case are 
▼ery vague and unsatisfactory. Mr. Wortham and Mr. Sm3rth say that they were not 
Bear enough to hear what was said, but they saw Mr. Fordham on the bench con- 
'^ing with other magistrates ; but no statement that the conversation was about this 
Particukr appeal. [Lord Denman, C.J. — Tliey say that, from his manner and 
fcneanour, it appeared to them that he was talking on the subject of the appeal ; and 
besides, without that, from the mere circumstance that he was conversing with tlie 
other justices whilst the appeal was being heard, it is reasonable to suppose that the 
Conversation had reference to the appeal. Mr. Fordham has answered one part of the 
charge ; is it not reasonable to expect tliat he should answer all ?] The correct posi- 
tion is, that a magistrate is not bound to answer vague charges. [Coleridge, J. — 
fiut you have answered part.] That which Mr. Fordham considered the grave part of 
the charge, as affecting his character, viz. his personal interest in the case as a creditor 
>f the turnpike trust, he has answered ; and as to the other part of the charge, it 
leally amounts to nothing, it being well known that justices at Quarter Sessions are in 
he habit of sitting on the bench talking together, during the trial of appeals, on mat- 
ers having no rdation to them whatever. Then as to Mr. Fitzjohn, he also was 
feaent, but he took no active part in the discussion upon the case ; he only called the 
ttention of the chairman to a particular fact. He did, however, give lus vote as a 
lagistrate^ although he was at the time a creditor of the turnpike trust. The 



188 MAGISTRATES* CASES. 

question, therefore, arises, whether he had such an interest in the result as disqualified 
him from acting as a magistrate in the decision of that case, and it is submitted that 
he had not. How could his interest be affected ? Whether the road was repaired or 
not, he, as a creditor, would have a priority of claim upon the tolls. Besides, tmder 
the statute 4 & 5 Vict. c. 59, s. 1, the application of the money is strictly limited to 
the repair of the roads in the parish from which it is derived ; and the order itsdf ia 
this case expressly enjoins that application of it. [Colbridob, J. — In some of tk 
Acts the repairs are made the first charge, in others not.] If, as here, the money m 
ordered to be paid for the purpose of the actual repair of the roads, it is difficult to ne 
how a creditor of the trust is interested in the maintenance of that order. [Col>* 
BiDOB, J. — It is in aid of the tolls.] To keep the roads in repair may, to some extent, 
certainly be a benefit to the creditors of the trust ; but it is too remote and trifling to 
form any ground of disqualification. Still, assuming that Mr. Fitzjohn was mate- 
rially interested in the result, that alone is not a ground of objection to his actii^ m a 
magistrate on the hearing of the case. R. v. I%e Cheltenham Conmussianer$ (I Q. & 
4G7) is an authority for that position. There the decision of the magistrates wn 
arrived at by a majority of 1 1 to 8, 3 of the 1 1 being clearly interested ; and Urn 
Court held that, under those circumstances, the decision could not be maintain^. 
The three interested parties turned the scale, but in the present case the majority wm 
10 to 2. [Lord Dbkmak, C.J.— Was not that an application for a criminal informt- 
tion ?] No ; it was an appeal against a rate made under a local Act, and an applici^ 
tion for a certiorari to remove the order of Sessions quashing it. It was argued tintt 
the certiorari had been taken away by the local Act ; but the answer was, not on a 
point affecting the jurisdiction : and Lord Denman, C.J., during the argument, said, 
" We have no doubt of our having authority to declare proceedings void where that 
has been malversation. That point ought not to be open to doubt. A statutory dam 
taking away certiorari must be understood to assume that an order has been made by 
the proper authority ; but that is not a proper authority where there is malversation." 
It is true that the language used by Lord Denman in that case was very unlimited, but 
it must be taken as applied to the particular circumstances of that case, upon wlneii 
Mr. Justice Patteson in giving his judgment entirely relied. That learned judge, ir 
concurring with the decision pronounced by Lord Denman, said, " I have no doubt tialk 
what took place on the second day makes this an invalid decision ; 19 magistraMi 
were then present, the majority being 11, and the minority 8 ; and 3 of the 11 beiif 
interested, that number would have destroyed the majority. I must guard myadt 
however, by stating that I am not at present prepared to say that in a case, where ofll. 
magistrate is interested and fifty others are not, the proceedings will necessarily It 
invalid. I cannot go that length. The magistrate interested may not recollect Ul 
interest, though afterwards the party failing may pick out the objection. I confess tinl 
I look with great suspicion at the general proposition that the vote of any interestal 
person must necessarily vitiate the proceedings." The effect of that case, tiierefore,ii^ 
that the objection is not fatal, unless the magistrates are so equally divided in opinioi 
as to give to the votes of the parties interested an important effect upon the reanit 
[Lord Dbnman, C.J. — I believe that all the rest of the Court thought tiiat any defect 
in the constitution of the Court by reason of interest is fatal, (a) and it is evident tfait 
the mind of the deciding body may be greatly affected even by one.] Not by one ift 
ten. [CoLBRiooB, J. — Frequently the chairman decides the whole matter ; he is bat 
one.] An important one. [Colbridgb, J. — Yes ; but the constitution of the Cooit 
must be settled before it proceeds to decide. Lord Dbnman, C.J.— Suppose one if 
three were interested ?] There is certainly a difiiculty in drawing the line, but upon 
that difficulty Mr. Justice Patteson's judgment proceeded. The rule, therefore* uaui 
be discharged. 

Hawkins, in support of the rule, was not called upon. 

(a) In Reg v. Cheltenham, Lord Denman, C. J., jority was made up, nor what the result would ksn 

said, **lt ia dear that on the 2nd day, three ma- been if the magistrates, who were interested, W 

gistrates, who were interested, took a part in the retired. The Court was improperly coiMtltiAsI 

decision. It is enough to shew that this decision and that rendered the decision invalid, and for mA 

was followed by an order, and I will not inquire I know, the decision may hare involTed tiM wM 

what the particolar question wii, nor how the ma- merits of the appeal." 



HILARY TERM, 1845. 189 

Lord Denman, C.J. — As to the order of Quarter Sessions, I am very clearly of 
opinion that the order must be brought up for the purpose of being quashed. I think 
hat both these gentlemen were disqualified from taking any part in the decision of the 
aae. Mr. Fitzjohn, as a creditor of the turnpike trust, had a clear interest in the 
cyment of money to the trustees ; and the case of Reg, v. The Cheltenham Commis- 
mers, with all tiie deduction which is to be made from the authority of that case, on 
Dcoiint of my brother Patteson not having gone to the extent to which the rest of the 
Sonrt went, is directly in point ; for the principle on which I rested my judgment in 
bst case was, that any one party taking part in the decision of a court of justice, and 
ifeerested that the decision should be one way rather than the other, is thereby wholly 
is^palified, renders the constitution of the Coiu-t altogether bad, and vitiates the whole 
tooeedings. I cannot enter into any analysis of the motives which may or may not 
■re influenced the decision of the Court ; it is enough for me to see that a party 
Dliezested has taken part in the decision in order to satisfy me that the Court was 
aproperly constituted. Mr. Fordham was a party respondent ; he was the justice of 
llie peace who had made the order, and was a respondent in the appeal. He might, 
tecfore, have been made responsible in costs ; that is a test which leaves no doubt as 
to lufl interest. Then I think the circumstances stated in the affidavits were quite 
affident to call upon him to state distinctly upon oath that he took no part whatever 
i&that decision ; and even so, there is something that one is sorry to see in the conduct 
d a magistrate, who is not only present, but is conversing with the other magistrates 
faring the course of a case in which he is interested. I dare say it never occurred to 
Kt mind that he was a party in any sense which ought to disqualify him from inter- 
faing, but this Court ought to be jealously cautious in preserving inferior tribunals 
hm even the taint of a suspicion of interest. It seems to me that ^.primd facie case was 
iide by the affidavit in support of this rule, and that it has received no answer by Mr. 
Aidham saying that he left before judgment was given. I think, therefore, this order 
iBiit be quashed. 

Pattbson, J. — In the former case of The Queen v. The Cheltenham CommissionerSf 
fcni the report, it seems that my judgment turned on the fact that the interested 
Mes there made the majority; and I suppose that I did rest upon that circumstance; 
^oa further consideration, I do not think that that is the correct ground. Whether a 
Wt is properly constituted, there being interested persons present, certainly cannot 
fiend on the question whether those interested persons would or would not cany the 
polity ; that would be a very unsafe and absurd ground to rest upon ; for it is im- 
ivible to say what might be the effect upon the decision of some argument urged by 
ly one of those persons, whether he voted or not. I was wrong, therefore, in saying 
■I the question ought to turn upon whether the interested parties would carry the 
ijofity ; that is not the question ; but whether any of the parties constituting the 
ioiirt IB at all interested in the result. In this case, Mr. Fordham was not a 
(editor of the trust ; that statement was made without sufficient information ; but he 
w a respondent in the appeal and liable to costs. It was said that mere surmise is 
ot enough to call on a magistrate for an answer ; in that I entirely agree, if there is 
•erely surmise ; but I think there is much more here, because the affidavit states that 
ifr. Fordham was in conversation with the other magistrates during the hearing of the 
meal, and although it adds that the deponent could not hear what was said, yet I 
knk it may be prhnd facie taken, if a party talks with magistrates whilst a matter is 
meeding before them, that he is talking about that matter ; and when he says in 
wver merely that he went away and did not vote, it is quite consistent with that, that 
le may have exercised a very important influence on the decision. It was certainly 
I ranote interest* which Mr. Fitzjohn had, but it was clearly an interest ; for although 
he Act says that the money is to be laid out in actual repair of the roads, yet if it is 
dmitted to be a relief to the general fimd, it comes to the same thing. 
CoLsmiDOB, J.—- 1 did not take part in the decision of ne Queen v. Cheltenham ; but 
m glad of the opportunity of expressing my concurrence in the view taken by the 
aprity of the judges in that case. Whether a Court is rightly constituted can have 
lOiDg to do wiUi the proceedings of that Court in any case; it is an d priori 
lestkm; as indeed was shewn in the present case, for» before the hearing, another 



190 MAGISTRATES* CASES. 

magistrate, the Marquis of Salisbury, 1 think, was objected to on the ground of interest 
luid retired. Looking at the report of that case, it does not seem to me that m 
brother Pattcson differed very much from the rest of the Court ; for I find that althoug! 
my brother Patteson did place some reliance on the circumstance that the thre 
interested parties who voted in that case would have destroyed the majority, and sau 
that he was " not at present prepared to say that in a case where one magistrate is in 
terested and fifty others are not, the proceedings will necessarily be invalid," he als( 
added, " I do not however feel that where a magistrate knows that he is interested and 
still takes a part in the discussion, he is justified in saying that because so many othet 
magistrates were present he could not have influenced the decision : I was surprised to 
hear that argument urged, because it is clear that great effect may be produced 
by the party being present and merely joining in the discussion." It was upon similar 
reasoning that the rest of the Court proceeded ; and it seems to me, therefore, that tJat 
case is an express and binding authority in this. 

WiOHTMAN, J. — I expressed, or meant to express, in The Queen v. Cheltenham, thit 
no Court can be properly constituted where one of the judges has an interest in tJie 
result of the case to be decided ; and I think that is the proper principle. We have no 
right to enter into any question as to the quantity of interest which might affect the 
decision of the party interested, or the extent of the influence which one might exer- 
cise over the others. 

Ride absolute accordingly. 

B. 



Q.B. Saturday, January 25. 

The Qubbn v. St. Lawbbncb Appleby. 

7%e occupation qfland need not be distinct and separate^ like that of houses, to give a tenement 
settlement under G Geo. 4, c. 57. 

ON appeal agtdnst an order for the removal of Mary Liddell, widow of Geoigt 
Liddell, and their five children, from the township of Pollard's Land, in the coxaXf 
of Durham, to the parish of Saint Lawrence, Appleby, the order was confirmed }fi 
the Sessions for the county of Durham, subject to a case. 

The case set forth that the examination of Robert Spence shewed that on the Ut ofj 
February, 1829, by a certain lease between JohnB. Sedgwick, the said Robert Spemxir^ 
and the said George Liddell, Sedgwick demised to the said R. Spence and G. Lidddi • 
" a certain farm, consisting of a separate and distinct dwelling-house, and about seventf; 
acres of land, be the same more or less, situate at Hoff*, in the parish of Saint Lawrenocir j 
Appleby, Westmoreland, for the terms of three years, three years, and one year, at anil 
for the rent or sum of seventy-six pounds for the first term of three years, and at and ' 
for the sum of eighty pounds for the next terms of three years and one year." The caw 
went on to set out the evidence of the said R. Spence, to the effect that he and LiddeB 
entered into the possession and occupation of the tillage land on the 2nd of Febniaiyi 
1829, and into that of the grass land on the 25th of March, 1829, and into that of the 
dwelling-house and buildings on the 6th of April, 1829, and that they both continued 
to occupy the land and house for three years, when they gave up possession : that, 
during each of these years, George Liddell resided and slept on the farm in the said 
parish ; that the house was necessary to the cultivation of the farm, and was worth- 
about 16/. per annum, while the land was well worth 60/. per annum; that LiddelU 
" in each of the three years, paid the said rent of 76/. for the same, in equal proportio»tm 
and the said George Liddell, in each and every of the said three first years, paid rent 
for the said land which he so occupied jointly with me, independently of the said 
dwelling-house thereon, to the amount of about thirty pounds." There were other 
leases between the same parties with a similar joint occupation. The said George 
Liddell had done nothing else to gain a settlement subsequently. The Seasions decided 



' HILARY TERM. 1845. 191 

that the widow gidned a settlement in virtue of the demise and occupancy of the land 

\jj her deceased hushand. 

Watson, Q. C, in support of the order of Sessions. — ^The order was right. This case 
tarns on the construction of the words of the first section of 6 Geo. 4, c. 57, which pro- 
ndes " that no person shall acquire a settlement hy reason of settling upon, renting, or 
{tying parochial rates for any tenement, unless such tenement shall consist of a separate 
md distinct dwelling -house or building, or of land, or of both, bond fide rented hy such 
person, at and for tiie sum of 10/. a year at the least, for the term of one whole year ; 
Bor unless such house or building, or land, shall be occupied under such yearly hiring, 
indthe rent paid for the same, to the amount of 10/. actually paid for the term of one 
liiole year at the least." It is contended by the appellants that the words " separate 
ad distinct" apply to " land," as well as to " dwelling-house or building." Now this 
statute is in pari materid with that of 59 Geo. 3, c. 50, which provides that " no 
perBon shall acquire a settlement in any parish or township, maintaining its own poor, 
n England, by or by reason of his or her dwelling for forty days in any tenement 
rented by such person— unless such tenement shall consist of a house or building, shall 
le within such parish or township — ^being a separate and distinct dwelling-house 
« building, or of land, within such parish or township, or of both, bond fide lured by 
nch person at and for the sum of 10/. a year at the least for the term of one whole year ; 
Bor unless such house or building shall be held, and such land occupied, and the rent 

: ibr the same actually pud for the term of one whole year at the least by the person 

' biring the same." Here the words are more distinct, but in both statutes they sufficiently 

i express that if the pauper have a house or a building, and in that case only, it must be 
£stinctly and separately held; but that if of land, it is immaterial whether it be 
flrnot. 
The Court called, on the other side, 

Archbold. — ^The Court will not be astute to put a strict construction on these words. 
It b a remedial statute. There must not be joint occupation of land or of house ; the 
lords, ** or of both, rented bond fide," refer to the manner of holding, and the words 
Bajrmean that both must be distinct and separate. [Lord Denman, C. J. — Mr. Arch- 
Wd, is there really any doubt in your favour on the point ?] To give the Act this 
tDQstniction would be to advance the remedy intended by 59 Geo. 4, c. 50, which was 
tiprevent joint occupancies, that being the mischief. [Lord Denmak, C. J. — The 
iiichief is, that doubts had been entertained, and disputes and controversies arose.] 
Int the Court will extend the meaning of a remedial Act, so as to advance the remedy. 
(fier V. Threlkeld, 4 B. & Ad. 229.) Here, if the words "or of" were struck out, 

demeaning would be quite plain. There is no case of joint occupation of land to be 

bond in the books. 
Lord Dexhan, C. J. — Mr. Archbold had better have given this case up handsomely 

K fint. The Act has studiously avoided doing the very thing we are asked to imply in 

fiOBStniiDg it. The land need not be separately held. 

OoLSRiDOB, J. — ^Nothing can be clearer than that the occupation of land need not, 
tccoiding to the statute, be either distinct or separate. 

Order confirmed, 

\ /. C. 8. 






IW HAGIOTRATES* CASES; 



BAIL COURT. 

Thursday, January 30, 1845. 
The Queen v. The Justices of Buckinghamshiee, 

A baatardy order under the 3rd eecL q/*7 ^ 8 Vict, e. 101, must expreatfy eiaie thai tin e9Um 
upon which the order woe made woe taken upon oath, although it be not espreaiy n q ubre i ft I 
to taken in the Act. 

JRCHBOLD had obtained a nde to shew cause why an order of bastardy, madeb 

two justices of Bucks, under the 7 & 8 Vict. c. 101, which had been oxonglitQ 

by certiorari, should not be quashed. The order was as follows : — 

" At a Petty Session of her Majesty's justices of the peace for the county of Bnddli 

ham, holden in and for the Ivinghoe division of the three hundreds of CottesIoM 

the county of Buckingham, at the Town-hall at Ivinghoe, in the said diviaon n 

county, on the fourth day of November, in the year of our Lord one thousand ofji 

hundred and forty-four, before us, the Rev. William Bruton Worth, clerk, and ll 

Rev. John Rich, clerk, two of her Majesty's justices of the peace for the ai 

county. 

" Whbeeas one Mary Stilton, single woman, residing at the parish of WingrovewittI 

this division and county, did, on the seventh day of October, in the yearcfoi 

Lord one thousand eight hundred and forty-four, having beenf delivered of a *ui 

bastard child within twelve calendar months prior thereto, make applidatioB 1 

William Jenney, Esq., one of her Majesty's justices of the peace usually acting fi 

this division and county, for a summons to be served upon one Thurston Bm 

rowl, of No. 13, Elizabeth-terrace, Liverpool-road, Islington, in the county '< 

Middlesex, carpenter and joiner, whom she alleged to be the hther of the ai 

child, and the said justice thereupon issued his summons to the said Thonta 

Earthrowl, to appear at the Petty Sessions to be holden on this day for this i 

vision and county to answer her complaint touching the premises ; and whereii i 

said Mary Stilton hath been lately delivered of a male bastard child ; and wfaM 

the said Thurston Earthrowl, having been duly served with the said sumoMi 

within forty days from the present time, and being now present, and the said Ifa 

Stilton having now applied to us the justices in Petty Sessions assembled, hi I 

order upon the said Thurston Earthrowl, according to the form of the statute i 

such case made and provided ; and it now being proved to us, in ihepresenciM 

hearing of the said Thurston Earthrowl, that the said child was, 'within 6ix cakaA 

months before the passing of an Act passed in the eighth year of the reign of b 

present Majesty, intituled ' An Act for the further Ameodmenl: of the' Laws reli4 

to the Poor in England,' that is to say, on the thirty-first niay of M^ch, in tbeytt 

of our Lord one thousand eight hundred and forty-four, bom a bastard of the hoi 

of the said Mary Stilton. < 

" And we having, in the presence and hearing of the said Thurstod Earthrowl, heaidtl 

evidence of such woman upon oath, (a) and such other evidence as she hath pvo 

duced, and having also heard the said Thurston Earthrowl, by his attorney, and tk 

evide^ce of the said Mary Stilton, the mother of the said child, having been 00 

robomted in some material particular by other testimony to our sadsfiBictiao, ^ 

hereby adjudge, &c." ' ' 

The grounds upon which it was sought to quash this order were these : — Ist, Ifc 

it did not shew that the application was made by the mother to a justice ofthePe*> 

Sessional division in which she resided, as required by the third section of the Act,ta 

simply a justice of the division, without saying of the Petty Sessional division. 2Ddl| 

That it did not state that the child was bom within six months before the passing * 

the Act, but merely that it was bom within twelve months prior to the applicitki 

3rdly, Tliatit did not appear that the justice before whom the original appUcation w 

(a) The words ** upon oath" here were interlined, and not in the printed form. 



[HILARY TERM, 184& 193 

imde was a justice of the county, but merely that he was a justice acting for the 
soonty. 4tbly, That it was not stated that any complaint had been made to the 
justice. 5thly, That it did not shew at what time the mother was delivered of the said 
bastard child. 6thly, That the order recited an application for an order of bastardy, 
Thereas it should have shewn not an application for an order, but an application that 
the evidence might be heard. 7thly, That it did not say that the evidence was heard 
^xm oath. And, lastly. That it was not shewn in what material particular the evi- 
4nce of the mother was corroborated. 

Keanie now shewed cause. — ^There are a variety of objections to this order, in which it 
k submitted there is nothing, and that this rule ought to be discharged. The first ob- 
jection is. that the application is not made to a justice then acting for the Petty Ses- 
Bonal division in which the mother resided. This turns on the clause of the 7 & 8 
VicLc. 101, s. 2, which directs "application to be made to any one justice of the 
peace acting for tiie Petty Sessional division of the county, &c. in which she (the 
Mfaet) may reside, for a summons,^' &c. These words are directory only. It has 
km so held in construing statutes which mention justices of a certain division ; .and it 
tihid down in Paley on Convictions, p. 24, ed. 1838, that if any thing be directed to 
k done " in the division by the magistrates acting for the division, any magis- 
Me of the county present at a meeting in the division is competent for that 
pvpose." This is upheld also in 2 Keble, 559 ; 3 Keble, 383 ; 1 Sau. 2G3 ; 
idCfey'^ case, 2 Salk. 480; lb. 473; Anon. 12 Mod. Rep. 546. It is necessary to 
ibfiate the inference which will be attempted to be drawn ft-om Reg, v. Martin (2 Q. B. 
M7, n.), which was an application under the ss. 94 & 95 of 5 & 6 Wm. 4, c. 50, 
liiich provides that a bill of indictment may be ordered to be prepared for the non- 
plfui of a hijghway by the justices at a special sessions " to be held withi^ the division 
ll which the Said highway may be situate." There the jurisdiction was held not to 
,ap|«ar, where the sessions were not stated to be within such division. But a distinction 
m be well drawn between these cases ; for Reg. v. Martin was on a statute in which 
[k jurisdiction was exercised to prefer an indictment, but here only to make an order 
^maintenance. Previously to a recent case, it was held that the costs of such indict- 
•■eat must alwa3rs fall on the parish, and the importance was great of having the pro- 
ta&ig in the neighbourhood of the locus in quo ; but it is a very different thiug in 
NSiating a child, where local knowledge is needless, neither havQ the overseers an 
iterest in the order. [Wiohtman, J. — ^What are your other points, Mr* Archbold ?] 
iMold. — ^There are several, my lord. Keane. — My lord, it is extremely important 
k liave the decision of the Court on this point; [Wig htm an, J. — ^What is meant 
^a petty Sessional division ?] Keane. — ^There is no such thing, my lord. Neither in 
In's Justice of the Peace nor in ArchbolcTs Poor Law can I find any such term once 
Ued. ArcMfold. — It is named in 9 Geo. 4, c. 43, s. 6. Keane, — Indeed there is 
Bt a word about it in the whole Act ; the only mention is of a " lawful division for 
Biding special sessions." [Wiohtman, J. — State some of your other material ob- 
eetions.] Archbold. — ^The whole of the first part of the order is bad, as shewing no 
Biisdiction. (He referred to the second ground.) It may have been that the woman 
ras deliyered more than six months before the Act passed. Keane. — The very words 
f die order are within six calendar months since, and the date of the birth is stated. 
irchbold. — ^That is under a videlicet. But there is no statement that the woman was 
ending in the petty sessional division at the time of the application, which is the 
jnvndwork of the jurisdiction. It is very well to say there is a distinction between 
Ibb case and that in Reg. v. Martin, but it is a distinction virithout a difference. 
WiGHTMAV, J. — In that case it was important that it should be in the neighbourhood ; 
ken tiiere is the case in Salkeld.] Archbold. — That had nothing to do with this 
He at all, and referred to 2 & 3 Chas. 2. [Wiohtman, J. — We ought to have 
, to see what the wOrds were. What other objection have you ?] Archbold. — 
he evidence of the corroborating witnesses does not appear on the order to have been 
ken on oath. Keane. — ^There is nothing in the statute which requires it to be 
ken up€m oath. Section 3 merely directs the justices " to hear the evidence 
/' &c. Not a word does it contain about being taken on oath. . [Wiohtman, J.— 
len you mean that it is unnecessary for the justices to take evideofce on oath ?] 



194 MAGISTRATES' CASES. 

Keane — No ; they will be presumed to have done rightly. Either the language of the 
statute includes and imports that the evidence was taken on oath, or it does not 
If it does, then, as it follows the express words of the statute, the or4er includes and 
imports that it was so taken. If the statute does not include and import that the efi- 
dence was on oath, then it is not requisite that it should be so taken or so stated. 
Orders of removal have been held valid though not founded on examination taken upon 
oath. {Hunger Munger v. Warden, 2 Sess. Ca. 40 ; 2 Bott. 817.) The order in Reg, 
V. Lewis (S Ad. & £11 . 881) does not allege that the evidence was on oath, neither do 
the forms settled by Mr. Archbold's New Poor Law Act, 5th ed. p. 28. We haie 
followed the statute, and shewed that we have done all the preliminary acts essential to 
the jurisdiction. Archbold, — ^The order must expressly state the evidence to hive 
been on oath, though the statute states nothing about it. Reg, v, Jones, New Sess. 
Cases, pt. 2 ; JSx parte Gray, 1 Bit. & Sym. 116, which was on the Masters and 
Servants Act, the 4 Geo. 4, c, 34 ; and there it was held that the jurisdiction was not 
sufficiently shewn, for it was not stated that the justices took the evidence on oath. 
Keane, — The statute requires the complaint to be on oath there. [Wightman, J.— 
Let me see the Act ; it states that the complaint must be on oath.] Archbold,-^Bat 
afterwards there is no such direction. [Wigutman, J. — ^I'he words are simply to en- 
power the justice to issue his warrant for apprehending such labourer, &c. and to a- 
amine into the nature of the complaint ; " and if it appear, &c., it shall be lawful," &c. 
What are the other objections ?] Archbold. — ^To state that a justice acts for tk 
county is not enough ; it should state he is of the county, for otherwise he may bet 
justice of Cornwall acting, without any right to do so, for Berkshire. The autfaori^ 
to make it must appear on the face of the order ; the Court will intend nothing it 
favour of the jurisdiction, but only in favour of that which follows the jurisdictiaB. 
(Reg, V. Spackman, 2 Q. B. 301.) Acting may mean playing, llie most rigid ob* 
servance is required of the preliminaries of jurisdiction. (Reg. v. Cariworth, 3 6. 
8l Dav. 163.) Keane, — Rex v. Dohhyn (I Salk. 474) decides that a statement of die 
justices in the county would be wrong, but a statement of justices for the county is 
sufficient ; and the case of Rex v. Andover (Cald. 373) also decides that justices acting 
for the division must imply that they were justices acting for the county. 

WiGHTMAK, J. — ^This rule must be made absolute, llie objection upon the gromd 
that part of the material evidence is not stated to have been taken on oath by tk 
justices at the petty sessions is an important one. It certainly does not appear heie 
that the evidence was so taken. The cases of Reg, v. Jones and Ex parte Gray are dfr 
cidedly authorities in this case, for they were upon a statute which docs not exprefiif 
state tiiat the evidence should be upon oath, and neither does this ; and yet it v» 
held in those cases that the order was fatally defective on that ground 



RukubsobOi^ 



J. C. S. 



COURT OF COMMON PLEAS. 

Friday J January 24. 

Barnes v. White and ANOTHBE.(a) 

The turnpike statutes A ^5 Wm, 4, c. 10, and 3 Geo, 4, c, 126'-'T\flli^C<nurieiiim^Wmnrmi. 

A local Act (53 Geo. 3, c, 92), for amending the roads and highways in the Isle qf Wight, emfmmd 
certain commissioners to take certain tolls at the several turnpikes or toll-gates wkiekwifii^ 
erected on the roads by virtue of the Act, The Act authorized the commissioners to borrow tsMi^ 
for the purposes of the Act, and to mortgage the tolls for any term during the eontinsumte <f A> 
Act, as a securitg for the repayment of such money. The time limited by the Act for Us «•!«► 
ance had exjnred, unless it was continued by the statute i 8f b Wm, 4, c. 10, for eontinidn§^ 
Acts for making turnpike-roads in Great Britain. • 

Held, that the local Act, though not exclusively a turnpike road Act, was mthin the 9piritsf,m 
continued by, the 4 ^" 5 Wm. 4, r. 10. 

The plaintiff was convicted under the general turnpike statute, 3 Geo, 4, e, 126, for forcibly psi^ 
through a toll-gate situate on a turnpike-road made under the authority of the local Act, 53 (r».*i 

(a) Reported by W. Patkrson, Esq., Darrister-at-law. 



HILARY TERM, 1845. 195 

r. 92, and thereby avoiding the toll due. The plaintiff refiised to pay the mm in tchich he was 

conmctedf and a warrant of distress against his goods was issued. The conviction contained no 
udjudication of the payment of the penalty, but followed the form given in the schedule to 3 Geo, 4, 
e. 126. 

ftld, that it wot therefore not bad. 

Instating the offence in the conviction more fully than in the warrant is not a variwice, if the same 
^enee is substantially stated in the warrant ; and therefore where the conviction stated the offence 
h be forcibly passing through a toll-gate situate on a turnpike-road, and the warrant stated the 
tM^gate to be situate in the particular parish arid county, but omitted to state that the toll-gate was 
M a tumpike-road, held not bad on the ground of variance. 

Re loeal Act empowered commissioners to take tolls at the several ** turnpikes or toll-gates *' erected 
vptn the roads by virtue qfthat Act ; and the general turnpike Act, 3 Geo. 4, c. 126, s. 4\, gives a 
ftnaity, '* tf any person shall fraudulently or forcibly pass through any such toll-gate." The 
warrant stated the offence to be with a carriage forcibly jtassing through a certain toll-gate, by 
meant whereof the payment of toll in respect of the carriage was avoided. 

BU^ that the warrant was not void for not stating that the toll-gate was situate on a turnpike-road. 

htl^form of warrant given by the 3 Geo. 4, c. 12G, one moiety of the penalty it to be paid to the 
saneyor of the turupike-road : — Held, that such fortn need not be strictly followed, and therefore 
that where the warrant ordered a moiety of the penalty to be paid to the treasurer qfthe commis- 

■^ mmersfor amending the roads and highways in the Isle of Wight, such warrant did not shew a mis- 

■ tjtpropriation of the penalty, 

mU also, that no demand of the penalty was requisite previously to issuing the warrant of distress 
mder 3 Geo. 4, c. 126, s. 141. 

rIS was an action of trespass for breaking and entering the plaintiff's close, in 
the parish of Carisbrooke, in the Isle of Wight, called "the timber-yard," and 
IBBOg and taking certain of his goods and chattels. The defendants pleaded not guilty 
statute, upon which plea issue was joined. The cause caroc on for trial at the last 
Assizes for the county of Southampton, on the 15th day of July, before 
ttteson, J., and a special jury, when a verdict was found for the plaintiff, with 21, 9s. 6d. 
!8, subject to the opinion of this Hon. Court upon the following 

Case, 

Tb& defendants are, and at the respective times of the making by them of the convic- 

and of the signing by them of the warrant of distress and of the committing of the 

hereinafter mentioned were, t^'o of her Majesty's justices of the peace for the 

of Southampton, acting in and for the division of the Isle of Wight, in the said 

»nty. 

On the 3rd of June, A.D. 1843, the plaintiff having been duly summoned, to answer 
liofDrmation in respect of the subject-matter of his conviction hereinafter mentioned, 
feared before the defendants with his attorney, and objected that the local Act herein- 
mentioned had expired, and therefore that the defendants had no jurisdiction to 
the complaint. The defendants overruled the objection, and proceeded to hear the 
as set out in the conviction hereinafter mentioned, and thereupon the plaintiff was 
iricted before the defendants, acting as such justices ; and of such conviction, under 
ifte hands and seals of the defendants, the following is a copy : — 

lile of Wight, in the 1 Be it remembered, that on the 3rd day of June, in the sixth 
CWy of Southampton, J year of the reign of her Majesty Queen Victoria, and the 
jui of our Lord, 1843, James Barnes, of the parish of Carisbrooke, in the Isle of 
%^t, in the County of Southampton, builder, is convicted on the oath of Charles 
Kewnham, a credible witness, before us, two of her Majesty's justices of the peace act- 
Sag in and for the said county of Southampton, and for tLe division of the Isle of Wight, 
It die said county, for that he the said James Barnes, on the 30th day of May last, in 
tte parish of Carisbrooke aforesaid, in the isle and county aforesaid, on the tumpikc- 
Md before then made and then bemg under the authority of an Act of Parliament, made 
aid pawed in the 53rd year of the reign of his late Majesty King George the Third, 
. Sir amending the roads and highways in the Isle of Wight, with a certain carriage, to 
wit, a cart drawn by one horse, did unlawfully, fraudulently, and forcibly pass through 
a certain toll-gate, then and there legally situate and being under the authority of the 
nid Act, by reason whereof the payment of a certain toll, to wit, the sum of three- 
pence, then and there legally due, demanded, and payable under the authority of the 
said Act, by and from the said James Barnes, for and in respect of the said carriage so 
drawn as aforesaid, waa avoided, contrary to the form of a statute made in the third year 



196 MAGISTRATES* CASES. 

of the reign of his late Majesty King George the Foiurth* intituled ** An Act to amenc 
the general Laws now in heing for regulating Turnpike-roads in that part of Greai 
Britain called England." And we do hereby declare and adjudge that the said Jamc 
Barnes hath forfeited for the said offence the sum of two pounds and two shiUlDgs. 

Given under our hands and seals the day and year first above written. 

R. Walton White. (L. S.) 
Thomas Gooki. (L. S.) 

The plaintiff refused to pay the said sum of 2/. 2s. which* by liie conviction, he wu 
Euljudged to have forfeited, and accordingly on the 5th day of June, 1843, oaosed the 
iefendants to be served with a notice of such refusal (of which a copy was set out in the 
case, but the same is here omitted, as nothing turned on it). 

Notwithstanding this notice, the defendants afterwards, on the lOth day of the nme 
month of Jime, issued a distress warrant under their hands and seals, of which waimt 
the following is a copy : — 

Isle of Wight, in the *) To the constables of the hundred of the West Medentb '^ 
county of Southampton, /the Isle of Wight, in the county of Southampton, and al 
Dther constables whom it doth or may concern, and especially to Thomas Hayter Chile. 
Whereas James Barnes, of the parish of Carisbrooke, in the Isle of Wight, in the 
county of Southampton, builder, was on the third day of June, now instant, confklii 
before and by us, the undersigned, two of the justices of our Lady tiie Qmou 
assigned to keep the peace of our said Lady the Queen within the same oom^. 
and also to hear and determine divers felonies, trespasses, and other nusdeeds vite 
the same county done and committed, on the oath of Charles Newnham, a uufikb 
witness, for that he, the said James Barnes, on the 30th day of May vaw 
last past, at the parish of Carisbrooke aforesaid, in the isle and county aforesaid, vih. 
a certain carriage, to wit, a cart drawn by one horse, the said cart then and tkiB 
having two wheels, and the felloes of such wheels being then and there of less Ixtidtb 
tlian three inches, to wit, of the width of two inches, did unlawfully, fraudulendy,inA 
forcibly pass through a certain toll-gate, then and there situate and being, by 
means whereof the payment of a certain toll, to wit, the sum' of threepence, Ikit 
and there legally due and payable by and from the said James Barnes, for and in re- 
spect of the said carriage so drawn as aforesaid, was avoided, contrary to the statutes 
in such case made and provided, by reason whereof the said James Barnes hA 
forfeited and become liable to pay, and -we adjudge that he, the said James BttMB^ 
shall forfeit and pay, the sum of two pounds and t^vo shillings, to be distributed i* 
hereinafter* mentioned, which said sum he, the said James Barnes, hath refused to W S 
these are, therefore, in her Majesty's name, to charge and command you to lety 4* 
said sum of two pounds and two shillings by distress of the goods and chatteb iof lb0 
said James Barnes ; and if within four days after such distress by you taken, the Mod 
sum, together with the reasonable costs and charges of taking and keeping Hbt ihaA 
shall not be paid, that then you do sell the goods and chattels so by you distniBedi 
and out of the money arising by and from such sale you do pay one moiety of ^ 
said sum of two pounds and two shillings to Marie Morgan, of Newi>ort, in the ' 
isle, who informed us of the said offence, and the other moiety thereof io the 
of the commissioners for amending the roads and highways in the Isle of Wight, 
the place where the said offence was committed, returning the overplus, on demand, tP 
him, the said James Barnes (the reasonable charges of taking, keeping, and selling tt^ i 
said distress being deducted) ; and if sufficient distress cannot be found of thcgW* 
and chattels of the said James Barnes whereon to levy the said sum of two pin* 
and two shillings, that then you certify the same to us, together with this our mrat^ 
Given under our hands and seals at the Guildhall in Newport, in the Isle of Wi^ 
this 10th day of June, 1843. 

R. W. White. (L.S.) 
Thos. Cookb. (L.S.) 
£ s. d. 

Levy fine 2 2 

Costs ... 5 



£2 7 



mt 



HILARY TERM, 1845. 107 

lanoe and under the authority of this warrant, the trespasses complained of 
;laration were committed hy the defendants. The plaintiff, disputing the 
L of the defendants to make such conviction, or to issue such warrant, and 
Iso to the form hoth of the said conviction and warrant, on the SOth day of 
konth of June caused same to he served with a notice of action (a copy of 
e was given in the case, but the same being in the usual form is here 

ion was commenced on the 4th day of August, 1843. 
idings in this action, and also an Act passed in the 53rd year of the reign 
I Majesty King George the Third, intituled " An Act for Amending the 
Highways in the Isle of Wight," copies of which accompany this case, are 
led and taken as part thereof, and may be referred to if necessary. (a) 
/ourt shall be of opinion that the plaintiff is entitled to recover in this action, 
the verdict found for him is to stand ; but if the Court shall be of a contrary 
m, then judgment of nonsuit is to be entered. 

I, Serjt. for the plaintiff (Butt with him). — ^The conviction was under the 
umpike Act, 3 Geo. 4, c. 1 26, but the question whether any toll was due or not, 
1 on the local Act, 53 Geo. 3, c. 92, having or not been continued and kept 
e statute 4 & 5 Wm. 4, c. 10. It is submitted that the local Act has not 
pt alive. Its titie is " An Act for Amending the Roads and Highways in 
Wight ;" but highways are not necessarily turnpike-roads, and the statute 
I. 4, c. 10, is only for the continuing of Acts for making and amending and 
umpike-roads. This local Act is not for making as well as amending roads, 
delusively a turnpike Act. The 20th section gives a power to the com- 
to erect turnpikes and toll-houses in or upon the sevend roads within the 
entioned in the Act, and the 23rd section enumerates the tolls which may 
but it is contended, that the continuing Act of 4 & 5 Wm. 4, c. 10 was not 
3 revive parts only of an Act, where the Act itself would have died, and does 
ore, apply to Acts which, like this local Act, are not exclusively turnpike 
iNDAL, C. J. — Is there not in the local Act any clause by which the corn- 
are empowered to borrow money upon the security of the tolls, because 

lUowing are the material clauses of the commissioners, or any person or persons to be 

eo. 3, c. 92 (local and personal, public), appointed by virtue of this Act collector or col- 

>, '*An Act for amending the Roads and lectors as aforesaid, to demand and take the several 

. the Isle of Wight.*' Sec. 1. That the tolls and duties following, at each and every of the 

hes there named, includiDg the parish of several and respective turnpikes or toll agates or 

<« and the several extra-parochial parts toll -houses, or turnpike or toll-gate or toll-bouse, 

sland, shall be and the same are hereby or side-bar or side-gate which shall be erected upon, 

, for the purpose of widening, repairing, across, or on the sides of the said roads, or any of 

and supporting the several roads or them, by virtue of this Act,** &c. Then follows 

thin the said several parishes, liberties, an enumeration of the tolls authorized to be taken, 
ms, and extra- parochial parts, and for Sec. 39. The commissioners are empowered to 

rryingthe severed powers and provisions borrow money for the purposes of the Act, and '* to 

nto execution.** assign over or mortgage the tolls hereby granted, 

ppoints commissioners for executing or any part thereof, and the several turnpikes and 

toll -houses to be erected on the said road (the 
" That it shall be lawful for the said charges of such assignments and mortgages to be 
rs, and they are hereby authorized and paid out of the said tolls), for any term during the 
to erect or cause to be erected such num- continuance of this Act, as a security for the re- 
bars, or turnpikes, and side -bars or side- payment of such sum or sums of money, with in* 
>on, or across the said several roads or terest for the same, to the person or persons who 
r any of them, within the parishes and shall advance and lend such money, his, her, or 
taid, and in, upon, or across any roads, their executors, administrators, and assigns,** &c. 
s leading, or that may hereafter lead into Sec. 86 directs that penalties imposed by virtue 
same ; and also one or more toll-house or of that Act, and not otherwise directed to be ap- 
with suitable conveniences thereto, and plied by that Act, ** shall be from time to time paid 
ad inclose on the sides of the said road to the treasurer or treasurers of the said commis- 
len-spots for such toll-houses, not ex- sioners, and applied in the repairs of the said 
fourui of an acre each, and fh>m time roads.** 

ke down and remove such turnpikes and Sec. 93. *' That this Act shall (so far as respects 

IS they, the said commissioners, or any the turnpikes and tolls, and moneys advanced or to 

'e of them, shall think proper and direct be borrowed on the credit tbereoQ commeDoe and 

and to erect others in the place thereof, take place on the Uth day of October next, and 

tlier place or places as they shall think shall oe in fbrce and have oontlniuuioe for and dur- 
ing the tsm of tweotyont years, and from thenee 

*^ThBt It shall be lawM for the said to the end of the then next session of Fariiament.'* 



196 MAGISTRATES' CABSB. 

that may have an important bearing on the question of the Act being continued ?] 
By the 39th section, the commissioners are empowered to borrow money, and ta 
mortgage the tolls as a security for the same; but the mortgage is to be only for a 
term during the continuance of the Act. Then as to the conviction, there is no daote 
in the local Act applicable, and the same is not warranted by the 3 Geo. 4, c. 126, 
under which it is made ; the 41st section of that Act, which imposes a penalty kt 
forcibly passing through any toll-gate, declares that every such person shall for emery 
such offence forfeit and pay any sum, &c. Now in this conviction there 'a no adjudi- 
cation of payment, but it simply states that " James Barnes hath forfeited for the aiid 
offence/' &c. The conviction is, therefore, uncertain in not ascertaining to whom the 
penalty is to be paid. As to this Rex v. Scale (8 East, 568) is in point. There t 
conviction on the 42 Geo. 3, c. 11 9, against illegal lotteries, directing the penaky t» 
be distributed " as the law directs," without ascertaining tlie persons to whom it was 
to be paid, was held bad for uncertainty. . [Tikdal, C. J. — Is any form given by 
the Act 42 Geo. 3, c. 119 .^ because there is by the present Act. CassawBLL, J.*- 
By the 148th section of this Act it is declared that the forms in the schedule are to lia 
used, and that no objection shaU be made for want of form.] It is submitted that 
this is not an objection of form, but of substance. There must be a forfeiture hy a 
neglect to pay before any distress can issue under the 141st section of the Act. AnoUxr. 
objection is, that there are variances between the warrant and conviction* The warmfe 
states the offence to be forcibly passing through a certain toll-gate "then and 
there situate and being," and does not state, as the conviction does^ that the toli«gafe». 
is situate on the turnpike-road. [Tindal, C. J. — Is it a variance* or is it any thiag 
more than this, that the warrant does not state so much as the conviction ?] It »- 
apprehended that it is a variance ; at all events, the warrant is void, and there is Jd 
offence, unless the toll-gate is on a turnpike-road, and there is nothing in the wanaaft^ 
from which it can be necessarily inferred that it is so situated. The stating that tbe 
toll was avoided " contrary to the statutes in such case made and provided," is toi>- 
general, when the language before was not sufficient for any such implicatioii. 
(Wickes V. Cluttcrbuck, 10 Moore, 63.) The General Turnpike Act, 3 Geo. 4, c. 1% 
gives no right to the toU, but creates the offence of forcibly passing the toll-gate; it 
is under the local Act that the right to tolls is given, and by that it is to be a toll oa 
a turnpike-road ; it must, therefore, be shewn to be a toll-gate in connection widi t 
turnpike-road, or the warrant does not disclose any offence. Another objection il^ ' 
that the warrant contains a misappropriation of the penalty. The 141&t section tt 
3 Geo. 4, c. 126, directs one moiety to be paid " to the treasurer to the commissionai 
for repairing and maintaining the road on which the offence shall have been cooi- 
mitted ;" but the warrant directs one moiety to be paid to the treasurer of the com- 
missioners for amending the roads and highways in the Isle of Wight. It is not ii i 
the warrant shewn that it is the road on which the offence was committed. There htf I 
also not been a sufficient adjudication as to the costs. At the end of the warrant i-j 
is stated, •' Costs, five shillings." There are two sets of coste : there are ibom\ 
attending the information and conviction, and the costs of taking and keeping tiia 
distress ; but there is no adjudication as to the former. Lastly, there does not appear 
a sufficient demand of the penalty to have been made before the distress. [Cbim- 
WELL, J. — The 141st section of the Act seems strong against you on that point; 
the penalty, it is there stated, is to be levied upon proof and conviction of the (^ence» 
and not upon demand.] 

Byles, Serjt. (with him Barstow), contrk, was directed to confine himself to die 
third objection, viz. as to the warrant being void for not stating the toll-gate to he on 
a turnpike-road. It clearly appears, from the warrant, that the offence was committed 
on a road in the Isle of Wight ; and the 20th section of the local Act gives power ft)- 
the commissioners to erect toll-gates on every road in that isle, therefore it was a 
road on which the toll-gate might be erected. A warrant ought not to be constroed 
so strictly as a conviction, as there is more time given for drawing the latter than the 
former. The 41st section of 3 Geo. 4, c. 126, describes the offence to be fordhly 
passing through any such toll-gate ; the difficulty is as to the word " such ;" if, as it 
would appear, there is no antecedent to it, it may be struck out, and then it beccnnet a 



HILAEY TERM, 1645. 190 

toD-gate absolute. Besides, no objection should be made that the warrant does not 
Mow the precise words of this 41st section, as defects in form are cured by the 148th 
section. The forms given by the Act are not peremptorily required to be used, but 
tiie 148th section says only that such forms " may be used ;" the difference in this 
lespect between "may" and "shall" is shewn in Davison v. Gill (1 East, 72). It 
ako appears by the warrant that the plaintiff passed through a toll-gate, by means 
nkereof the payment of a toll then legally due was avoided. [Caesswell, J. — The 
^|De8tion is, whether there may not be a gate for collecting tolls other than turnpike 
toik.] The word toll-gate has in the Act a certain definite sense. 

duumell, Serjt. replied. 

TiNDAL, C. J.—- It appears to me that the defendants are entitled to the judgment of 
tiie Court in their favour. There have been several objections taken on the part of the 
pbmtiff. The first was, that the local statute of 53 Geo. 3, c. 92, has not been continued 
by the general Act 4 & 5 Wm. 4, c. 10 ; but I think that when the object and intention 
of the former Act are looked at, it is manifest that it has been continued. One of the 
ilijects must have been that persons who had lent money for the purposes of such local 
A^ should not, at the expiration of that Act, be without any security for the money they 
■ly have so advanced. By the 39th section of 53 Geo. 3, power is given to mortgage 
the tolls as a security for the repayment of such moneys ; and it would, therefore, be 
if most mischievous consequences if we were not to look at the spirit of the enlarging 
Act, and to say that this local Act is not included therein. The 4 & 5 Wm. 4, c. 10, 
Mtes, that it is expedient that the several Acts for making, amending, and repairing 
Ike turnpike-roods in C^reat Britain should be continued ; and then proceeds to enact 
Alt they sludl accordingly be continued. Now, although it may be true that the local 
Act, 53 G«o. 3, is not hmited to making turnpike-roads, but is for amending roads and 
l^hways in t^ Isle of Wight, stiU it certainly falls within the spirit of the 4 & 5 
Wm. 4, c. 10. The excepted Acts, which are specified in the second section of that 
Mfttute, and which are for widening certain streets, shew what was meant by the general 
lords Turnpike-road Acts, and that it was supposed necessary to expressly except 
km, although they did not come strictly within the meaning of Turnpike Acts. The 
leoood objection was as to the form of the conviction, in not adjudicating the pay- 
ment of the penalty. The answer to that is, that this conviction precisely follows the 
farm given in the schedule to the statute 3 Geo. 4, c. 126 ; and the 148th section states 
tittt no objection shall be taken for want of form. The third objection was, that there 
»u a variance between the warrant and the conviction. The answer is, there is no 
neh variance ; that the conviction only states the ofFence more fuUy than the warrant, 
bnt that in effect the warrant and conviction agree. It was then objected that the 
■arrant was void, in not stating the toU-gate where the offence was committed to have 
been on a turnpike- road ; but it appears to me that there is no ground for this objec- 
tioii. If we look at the warrant, it is true it does not state the toll-gate to be on a 
tompike-road, but it states what is equivalent ; it states a toll-gate " then and there 
■toate and being, by means whereof the payment of a certain toll then and there legally 
iat was avoided." I agree that you are to consider the local Act as incorporated with 
Ibe 3 Geo. 4, c. 126, by the 41st section of which the penalty is incurred "if any 
penon shall fraudulently or forcibly pass through any such toll-gate." Now it is an 
■ttwer to this objection, that the warrant follows the words of this Act, and is there- 
fore sufficient. Besides, if we consider the local Act to be incorporated with the 
Qeneral Turnpike Act, then the toll is equivalent with a turnpike toll. The 22nd 
•ection of 53 G^. 3 gives the commissioners power to take the several tolls there 
CBomerated " at each and every of the several and respective turnpikes or toll-gates ;" 
V which it appears that that Act treats toll-gates and turnpikes as equivalent. For 
tbeae reasons this objection, therefore, seems to be answered. The fourth objection is, 
Alt the warrant does not shew a proper appropriation of the penalty ; but it is 
aiffictent to say that it is in the form given in the schedule to the 3 Geo. 4, c. 126. It 
ji true that the warrant does not follow the very terms of the form, as in the schedule 
it 18 stated that one-half is to be paid to the person who informed, and the other half to 
flie surveyor of the turnpike-road, whilst in the warrant it is stated that the other 
' is to be paid to the treasurer of the commissioners for amending the roads and 

i2 



m) MAGISTRATES' CASES. 

higliways in the Isle of Wight ; hut this makes no real differmice, hecauae it may I 
impossible to follow the precise words of the form in this respect, and the 148th secdo 
provides that the forms may be used " with such additions and variations only as ma 
be necessary to adapt them to the particular exigencies of the case." The fifth objec 
tion was, that there had not been an adjudication as to the costs, but that has bee 
properly abandoned. And tbe sixth and last objection was, that there has been n 
demand of the penalty ; but that has been already answered by the Hist clause, whid 
makes tbe power to levy depend on the conviction, and not upon the demand. There> 
fore I think not any of the objections can be supported. 

Cbesswell, J. — I am of the same opinion. I am surprised that there could have beeo 
ever any doubt that the local statute of 53 Geo. 3 was not continued by the genenl 
statute 4 & 5 Wm. 4. It is not the less a Turnpike Act, because it is not limited t9 
making turnpike- roads, but is also for other objects. I have no doubt that it hn 
been continued. The next question is, whether the justices have rightly proceeded in 
convicting the plaintiff. The objection to the form of the conviction may be answered^ 
that the statute has given a form which has been followed, and by that statute no ob* 
jection for want of form is to be taken. It is next said that the warrant is bad bf 
reason of a variance between the warrant and conviction ; but I don't think that there ■ 
any variance — the offence is stated more fully in the conviction ; but if, as it appead 
here, the same is substantially stated in the warrant, it may be supported by the cob- 
viction. In Daniell v. Philippe (1 CM. & Ros. 662) the conviction was imder te 
Malicious Trespass Act, 7 & 8 Geo. 4, c. 30 ; the conviction was for unlawfully and 
maliciously damaging a quantity of rushes of one David Thomas, and in the warrant d 
commitment the offence was alleged to be having unlawfully trespassed upon lands ia 
the occupation of David Thomas, and having cut and carried away a quantity of nishei. 
An objection was made that the conviction did not support the commitment, for tlie 
former was an injury to personal, the latter to real property ; but the Court said thrt 
the objection ought not to prevail, because the conviction was for the same offenee, 
though in somewhat different language, viz. for the malicious cutting and eanyiiig 
away a quantity of rushes, and it proceeded upon the same statute as that on which ^ 
commitment was founded. The main objection in my mind which has been raised, wtt 
that the warrant did not disclose any offence at all ; but on looking to the Act, I am not 
satisfied that tbe doubt which I had at first entertained on this was not well founded 
and that the warrant does state an offence in words which are synon3rmous with thoBi 
in the local Act. The penalty imposed by the General Turnpike Act is on any persott 
who shall forcibly pass through any such toll-gate and thereby avoid the toll due ; in 
the warrant the offence is said to have been in the Isle of Wight, with a certain carriage 
unlawfully and forcibly passing through a certain toU-gate, then and there situate and 
being, by means whereof the payment of a certain toll, then and there legally due, wA 
payable for and in respect of the said carriage, was avoided ; it therefore appears tB 
have been a toll due from carriages ; this brings it within the local Act giving fiM 
right to toll, and is, therefore, an offence under the general Act 3 Geo. 4, c. 126. 

Erlb, J. concurred. 

Judgment of nonsuit. 



Q.B. Wednesday, January 22. 

The Quben v, Thb Inhabitants of Yblvertoft. 

Removal to the mother' 9 maiden settlement — Inquiry into the father's settlement, when w wwwr y - 

Evidence — Practice, 

A panper may be removed to the place of his mother's maiden settlement f (f the settlement qfik 
father does not appear t and it is not necessary in such a case to shew that any h^uiry has hsm 
made to ascertain the father's settlement. An examination qf the pauper's father, m uMth k 
stated that he believed he was bom in London, but in what parish he never heard, aeec mpam tn 
an order removing the pauper to his mother's maiden settlement : — Held, that that statement, as i 
was no evidence qf the birth-place qf the father, did not render it incumbent upon the rcmofoi 
parish to institute any investigation into the father's settlement! and the order was aeeordinti 
cor^rmed. 



HILARY TERM, 1841 801 

AHUr, if there had been mty food etidenee qfihe hirth^place qfthefatker* 

A wUmeee eiaied before the remomng Juetieee that he was 59 yeare old; and then gate evidence of a 
feet, whieA, according to hit own etatement qfhie age, must have taken place when he was between 

Zand 4 gears old: — Held, no ground for rejecting the evidence altogether. 
The smmejfaet was proved by a different witness at the sessions ; and the objection being taken, it was 

held that the respondents were not bound to prove their case at the sessions by the same witnesses 

whom they called brfore the removing magistrates. 

UPON appeal against an order of two justices removing Charles Page the younger, 
with his wife and four children, from the parish of Blaby. in the county of 
Leicester, to the parish of Yelvertoft, in the coimty of Northampton, the Court of 
Qnurter Sessions confirmed the order, subject to the opinion of the Court of Queen's 
Bench upon the following case : — 

Two justices, by their order, dated 14th of October, 1843, removed Charles Page, 

ipmior, together with his wife and their four children, from Blaby, in the county of 

Looester, to Yelvertoft, in the county of Northampton ; the examinations, so far as 

^ were material to the case, were as follows : — ^First, the examination of the pauper 

tD the effect that he had gained no settlement in his own right. Second, Charles Page, 

ttior, — " I believe I am upwards of sixty- four years of age, and was bom, I believe, in 

iDodon, but in what parish I never heard. I was brought up by my grandfather at 

Tchertoft, in the county of Northampton, from about the age of two and a half years, and 

Mver saw my parents above three or four times afterwards, and don't know where they 

Uonged. I have never done any act to gain a settlement in my own right. I was 

mried at Yelvertoft Church, on Yelvertoft Feast Tuesday, when I was about twenty- 

, ^B and a half years old, to Catherine York, single woman, by whom I had six children, 

9gt of whom is the pauper, Charles Page, the younger, who was bom at North Thel- 

ttoih, and is about thirty years old. I have heard that my said wife was bom at Yel- 

Urtolt, where I remember her parents living, and where I believe they belonged. I 

teter heard the place of her settlement was out of Yelvertoft. She died at North 

lUworth about twenty-three years ago." Third, Thomas York, — " I believe I am fifty- 

line years of age, and was bom at Yelvertoft ; my father Samuel and my mother lived 

Affe ever unoe. I can recollect I lived with them until th